DUKE UNIVERSITY LIBRARY t/l MEMOIR OF SIR JAMES DALE AMPLE FIRST VISCOUNT STAIR. Edinburgh : Printed hy Thomas and Archibald Constable, FOR ED.MONSl'ON AND DOUGLAS. LONIION . . - , . . HAMILTON, yVDAMS, AND CO. CAMBIUDGE ... MACMILLAN AND CO. GLASGOW . JAMES MACLEHOSE. MEMOIR OF SIR JAMES DALRYMPLE FIRST VISCOUNT STAIR PRESIDENT OF THE COURT OF SESSION IN SCOTLAND AND AUTHOR OK THE “INSTITUTIONS OP THE LAW OP SCOTLAND ” A STUD Y IN THE HISTOR Y OF SCOTLAND AND SCOTCH LA IV DURING THE SEVENTEENTH CENTURY /K. J. O. ]\I A C K A ADVOCATE OF THE SCOTCH BAK. FI) IN HU RGIl E1) iM () N S 'r 0 N AND D O U 0 L A S 1 8 7 3. Digitized by the Internet Archive in 2018 with funding from Duke University Libraries https://archive.org/details/memoirofsirjames01mack ^XIX'A CONTENTS. Preface, ........ xiii Chronological Table, ...... xvii CHAPTER I. 1619-1G37. Ancestry of James Dalrymple, afterwards Lord Stair—William Dal- rymple, a cadet of the Dalrymples of Dalrymple, acquired the small estate of Stair in Ayrshire by marriage with Agnes Ken¬ nedy in reign of James ii.—Their son William married Marion Chalmers of Gadsgirth, one of the Lollards of Kyle—The great- grandson of Marion Chalmers, great-grandfather of Lord Stair, James Dalrymple of Stair, belonged to the party of the Assured Lords, and was an adherent of the Reformed Faith—His son, James Dalrymple, also a Protestant, joined the association of 1567 in favour of James vi.—Neither the grandfather nor father of Stair notable—His mother, Janet Kennedy, sprang from a family which had taken the side of the Reformers—Stair born in 1619 at Drummurchie—His father died when he was five years old—Soon after which he w'as sent to Mauchline Grammar School by his mother—Groundless tradition of his father’s murder—Stair went to Glasgow University in 1633, and gradu¬ ated in Arts in 1637—Description of Glasgow at this period, . 1 CHAPTER II. 1638-1647. Early manhood—Stair in Edinburgh—Sketch of political position at this period—Stair serves in the Earl of Glencairn’s regiment in the civil war—Elected a regent or professor in Glasgow Univer¬ sity—Subjects of instruction at this time in the University—His contemporaries as professors—Principal Strang, Robert Eaillie, David Dickson—Overture as to the college rents—Takes part in Baillie’s settlement as professor—Stair marries Margaret Ross of Balneil, and is re-elected regent—Sent to Edinburgh to idami exemption from excise for the University—Resigns office of regent—Influence of University training on Stair, ... 10 h 5108 ( 1 *? VI CONTENTS. CHAPTER III. 1648-1650. Stair passes as advocate—Sketches of some of his predecessors and contemporaries, Sir James Balfour, Sir Thomas Craig, Sir John Skene, Sir Thomas Hope—The leaders of the bar when Stair passed. Sir Thomas Nicolson, Sir John Gilmour, Sir John Nisbet— Hiiference in the position of the Scotch advocate and in the state of the Scotch law at that and at the present time—Stair goes to Holland as secretary to the Commission from Parliament to Charles ii.—Position of Scotland after death of Charles i.—Pro¬ ceedings of the Commission—Its failure—Stair appointed a Com¬ missioner for the revision of the laws—The previous attempts with the same object—Second Commission to Charles ii. at Breda —Stair again secretary—Its proceedings—Stair returns with the Closed Treaty—Stair meets Charles on his landing—Influence of Stair’s visits to Holland—Intimacy between Scotland and Holland since the Reformation—Dutch jurisprudence, .... CHAPTER IV. 1650-1661. Stair advocate and judge during the Commonwealth—Sketch of influ¬ ence of Cromwell’s government in Scotland—Stair and other advocates refuse to take the Tender—The Tender laid aside— Stair one of Committee for restoration of the Outer House— Death of Sir James Learmonth, Lord Balcomie, one of the Com¬ missioners for the administration of justice—Stair appointed his successor by Monk—His appointment confirmed by Cromwell— His intercourse with the English judges gave him an opportunity of learning English law—Builds the house in General’s Entry —His intimacy with Monk, who consults with him before he marches to England—Visits London on accession of Charles ii.— Appointed one of the Judges of Court of Session in new nomina¬ tion—His wife’s estate of Carscreoch, in Galloway, his country residence, .......... CHAPTER V. 1661-1671. Stair Judge of Court of Session—Government of Scotland under Charles II. —The Royal Prerogative restored—First the Earl of Middleton, CONTENTS. and afterwards the Earl of Lauderdale, at the head of Scotch affairs—Stair deprived of office for refusing the Declaration, but restored by Charles—Visit to Paris—Created a Baronet—Tragedy of his daughter, Janet Dalrymple, the Bride of Lammermoor— Different and inconsistent versions of the story—Other sujiersti- tious stories about members of Stair’s family—One of the Scotch Commissioners to treat of the Union—Failure of this project— On the resignation of Sir John Gilmour, appointed President of the Court of Session—Sir George Mackenzie’s character of him— Made a member of the Privy Council of Scotland, CHAPTER VI. 1671-1676. Stair President of the Court of Session for the first time—A Member of Commission for the Regulation of the Judicatories—Its interim Report in 1670—Secession of the Advocates on account of limita¬ tion of their fees—Act of Regulations 1672—Stair Member of Parliament for .shire of Wigton and one of Committee of the Articles—Legislation of this year—Act against Conventicles— Powers of Privy Council increased—Acts relating to Private Law—Inventories of Minors’ Estates—Summonses—Registration of Deeds—Privilege of Royal Burghs—The Ann—Special Adjudi¬ cations—Debate before Lauderdale on jiroposal to abolish Summer Session of the Court—Again Member for Wigtonshire in Parlia¬ ment of 1673—Incident of the Petition presented by the Women in the Parliament Close—Secession of the Advocates on the ques¬ tion of Appeal to Parliament from Court of Session—Conduct of the leading Advocates and of Stair on this occasion—The three leaders of the Bar at this period. Sir George Lockhart, Sir John Lauder, Sir George Mackenzie, ....... CHAPTER VII. 1676-1681. The City of Edinburgh undertakes to pay Stair’s house-rent and that of his successors in office as President—Lauderdale in Scotland in 1677—His policy—Trial of Mitchell—The Highland Host in the West, and Bonds of Lawburrows imposed on all persons in trust —Stair opposes these measures in Council—Sir G. Mackenzie’s defence of them—Stair obtains alleviation of severe orders of Council against Covenanters—Important Acts of Sederunt of Court of Session as to Imprisonment for Debt and Protection of Debtors—Inventories of Registers—Against Solicitation of the 510807 CONTENTS. viii Judges—Diligence of Executor Creditor—Admission of Notaries —The Convention of 1C78—Rebellion of 1679—Murder of Sharpe —Druinclog—Bothvvell Bridge—The Sanquhar Declaration— Stair visits London to defend Court of Session—Charges against Lauderdale and the Court—Charles exonerates both—Duke of York comes to Scotland—Stair’s speech to him at Holyrood— The Duke returns in 1680 as Commissioner to Parliament instead of Lauderdale—Cruel measures of the Privy Council—Stair defends himself from the charge of jjarticipating in them—Mem¬ ber of Parliament for Wigtonshire in 1681—Acts of this Parlia¬ ment as to the security of the Protestant religion—Succession to the throne—Against Conventicles—Test Act—Account of the debates on it—Legislation as to private law—Stair’s Act as to execution of deeds—Exclusion of terce by marriage-contract pro¬ visions—Registration in burghs—Judicial sales—Summary dili¬ gence on foreign biUs—Evil consequences of Test Act—Trial of Argyll for taking it with qualification—Stair flies to London, but is refused an audience by Charles—Returns to Scotland—Deprived of office as Judge—Lives in retirement in Galloway, and prepares his Institutions for publication, . . . . . . .131 CHAPTER VIII. 1681. Publication of the Institutions of the Law of Scotland at Edinburgh in 1681—Composition of the Work—Use made in it of the Decisions collected by Stair, and afterwards published—Aim of the Work —Difference in Arrangement of First Edition and Second Edition of 1693— Modus Litigandi on Forms of Process—His position that Rights are the object of Law, new and important—His defini¬ tion of Law as Reason versant about the Rights of Men—Rights divided by him into Personal Liberty, Dominion, and Obligations —Obligations divided into those by Engagements and Obediential Obligations—Criticism of this Division—How far he follows the Civil Law and the Feudal Law—Treatment of Commercial Law —Analysis of the Contents of the Institutions —Estimate of its Value—Com])arison of it with the Institutional Works of Sir George Mackenzie, Lord Bankton, Mr. Erskine, and Mr. Bell, . 151 CHAPTER IX. 1681-1686. Stair lives in retirement at Carscreoch in Galloway and Stair in Ayr¬ shire—Commission granted to Claverhouse, as Sheriff of Wigton, CONTENTS. IX to put down Conventicles, 1682—Letters from Stair to Lord Queensberry—Puts off proposal to wait upon Luke of York— Sends Queensberry a copy of the Institutions—Parties and Con¬ venticles in Galloway—Claverhouse comes to Old Luce Parish— Conflict of Jurisdiction between him and Sir John Dalrymple, as Bailie of Regality—Sir John offers to buy off Regality from Claverhouse—Stair writes to Queensberry complaining of Claver¬ house—Conceals himself, and flies to Holland to avoid prosecu¬ tion, October 1682—Claverhouse and the Master of Stair make mutual complaints against each other before the Privy Council, which acquits Claverhouse and condemns the Master of Stair, who is deprived of his office as Bailie—Stair lives in Leyden— Description of that town and its University—Its Professors— Intercourse with Utrecht—Controversies of Aristotelians and Cartesians—Cocceians and Voetians—Other celebrated men in Holland—Sihnoza—Bayle—Fagel—The Dutch Artists—General Activity and Industry of the Dutch—Scotch Exiles at this time in Holland described by Stewart of Coltness—Stair publishes iirst volume of his Decisions of the Court of Session—His dili¬ gence in noting Cases—His Decisions the first published— History of Scotch Law Reporting—Style of his Reports—Con¬ trast between them and 2 )resent Reports, . . . . .177 CHAPTER X. 1686 - 1688 . Stair jtublishes at Leyden the PJtysiologia Nova Experimental is — Position of the second half of the seventeenth century in the history of Physical Science—The Physiologia dedicated to the Royal Society of London—Stair describes its aim and his new Corjjuscular hypothesis in the Preface—The Physioloyia part of a more general treatise intended to embrace the whole of Philo¬ sophy, which was to consist of four Inquiries concerning Human Knowledge, Natural Theology, Morality and Physiology— Analysis of the Physioloyia —Its Definitions and Axioms—His corpuscular hypothesis contrasted with the theories of the Atomists and Descartes—His theory of motion—His erroneous astronomical notions—Undulatory theory of light—His sketch of imperfect chemistry of the time—The Physioloyia favourably reviewed by Bayle—The States-General refuse to expel Stair from Holland—Stair charged with treason for complicity in Rye House Plot and Argyle’s expedition—Account of the proceedings against him by Sir George Mackenzie, the Lord Advocate— Evidence against him obtained by torture, and inconclusive pro- X CONTENTS. ceedings against him adjourned—In 1687 Sir John Dalrymple, Master of Stair, becomes Lord Advocate, and obtains a remission for his father—Stair refuses to accept the pardon, and continues in Holland till the Eevolution of 1688, ..... CHAPTER XI. 1688-1692. Stair accompanies William of Orange on his voyage to England— Lands with him at Torbay—Remains in London during the Con¬ vention of 1689, but takes active part in Scotch affairs—Pro¬ ceedings of the Convention—Stair’s criticism on the vote declaring James had forfeited the Crown—Commissioners from Scotland sent to ofifer Scotch Crown to William—William takes Corona¬ tion Oath, and makes declaration in favour of toleration—Master of Stair Lord Advocate—Other Officers of State—Stair appointed President of Court after death of Lockhart—His letter to Melville as to management of Convention—Parliament meets— Origin of the Club party, or the Patriots—Their conduct—Battle of KUliecrankie—Votes carried by Club in Session of 1689, but not sanctioned by the Commissioner—One of these votes directed against Stair—Anonymous pamphlet in support of the votes— Stair urges that this should be answered—Stair’s Apology— Created Viscount—Nomination of the new Session—Stair’s account of their first meeting—His speech to the advocates— Letters to Lord Melville as to conduct of the Club, and state of affairs in Scotland—Coolness between MelviUe and the Dal- rymples—Stair’s last letter to Melville, 30th January 1690— Parliament of 1690—Its proceedings—Concessions of Wdliam— Stair member of Committee for Settlement of the Church— Measures passed for that purpose—Visitation of the Universities —Stair a member of Commission—Master of Stair supersedes Melville—Proposal to embody militia—Stair’s diplomatic con¬ duct in the Council—His prosperity, ..... CHAPTER XII. 1692-1695. Death of Lady Stair—Her reputed Witchcraft—Belief in Witchcraft in 17th Century—Why attributed to Lady Stair—Her Char¬ acter—Massacre of Glencoe—Stair’s connexion with it—Attacks upon the Court of Session, and Stair as President—How far well PAGE 194 212 CONTENTS. founded—Measures in Parliament for Reform of Court of Session —Charge against Stair of favouring his sons as advocates not well founded—The Peats—Acts of Sederunt of Court of Session during Stair’s second Presidency—Publication, anonymously, of The Vindication of the Divine Perfections —Summary and Character of this Work—2.5th November 1695, Death of Stair—His Personal Apjjearauce—Macaulay’s false Character of him—Estimates of Contemporaries—His true Character—Comparison and Contrast between him and Lord Bacon—His Descendants ; the Master of Stair ; Sir James Dalrymple of Borthwick ; Sir Hew Dalrymple of North Berwick ; Dr. Thomas Dalrymple ; Sir David Dalrymple of Hailes ; The Field-Marshal and Second Earl Stair; Lord Hailes—His character reflected in them—Greater than any of his descendants—Chief Founder of Law of Scotland, . . 247 INDEX,.295 k^. PREFACE. The work which follows contains a Memoir or Memorials rather than a Biography of Lord Stair, for the materials necessary for the latter scarcely exist. Especially in those minute particulars required to form a living picture of a man removed by nearly two centuries from our own times, there is a blank m the information with regard to Stair, A fire at Castle Kennedy is said to have destroyed most of the early papers of the Dalrymple family, and I have been in¬ formed by Dr. John Stuart, of H.M. General Register House, Edinburgh, who recently examined them for the Historical Commission, that there are none relating to its founder. It is possible, however, that letters of or referring to Stair may still be extant. Should any reader possess such he will do a favour by communi¬ cating them to me. I have thought it expedient to give at length most of the letters of Stair which have come under my notice. These bring us in closer contact with the man than any remarks which can be made about him. XIV PREFACE. For an account of his public acts and an estimate of his character as a Statesman, Judge, and Author, there is ample matter, which I have tried to condense rather than to exhaust. How far it has been necessary to enter into general history is elsewhere explained. While giving Stair his place as the central figure, the attempt has been made to trace the progress of Scotch law during the seventeenth century, its golden age—hke other golden ages not without much dross, —and to commemorate some of the more eminent of his contemporaries, both legal and political. An acknowledgment is due to the writers who have already treated the same subject—Professor Forbes, in his Preface to the Journal of the Sessions, Dr. Murray, in the Literary History of Galloway, and Dr. David Irving, in his Lives of Scottish Writers. They have indicated many, though not all, the sources from which this Memoir has been composed; but the original authorities have in every case been consulted. The principal of these are the Munimenta of the Uni¬ versity of Glasgow; the Letters of Principal Baillie; the Histories of Clarendon, Burnet, Sir George Mackenzie, and Wodrow; the State Papers of Clarendon, Thurloe, Lauderdale, Lord Melville, and Carstaires; the Deci¬ sions and Miscellaneous Writings of Sir John Lauder PREFACE. XV of Fountainhall; the Acts of the Scotch Parliament; the Sederunt Books of the Court of Session and Justi¬ ciary ; and the Minutes of the Privy Council. I have made more copious quotations from these contem¬ porary sources than is usual, wishing to enable the reader to test the accuracy of conclusions which some¬ times differ from those of writers of great and deserved reputation. To two Hving authors, Mr. John Hill Burton, Advocate, the historian of Scotland, and Mr. David Laing, Librarian of the Library of the Writers to the Signet in Edinburgh, who have done much to elucidate the history of this period, I desire to offer grateful thanks. In treating of Stairs Work, the Physiologia Nova Experimentalis, I have been reluctantly compelled to refer to matters on which my knowledge is entirely second-hand, but the authorities on whom I have rehed are, I hope, sufficiently indicated. In regard to this part of the subject I owe much to the learning of Mr. W. H. Hudson, Fellow of St. John’s College, and Mathematical Moderator in the University of Cam¬ bridge ; and of the Reverend W. R. Smith, Professor of Hebrew in the Free Church College in Aberdeen. Another friend, Mr. Alexander Gibson, Advocate, was good enough to read the proofs, and made many valuable suggestions. XVI PREFACE. Written in the intervals of leisure alone available to the lawyer who does not abandon the practice of his profession for literature, this Memoir requires indulgence. Such mtervals, however, are of consider¬ able length in the hves of most young lawyers—in this respect, I think, more fortunate than they are sometimes willing to imagine. CHRONOLOGICAL TABLE. 1619. 1629. 1633. 1637. 16.38. 1639. 1640. 1641. 1642. 1643. 1644. 164.5. 1646. 1647. 1648. 1649. 1650. May 1619—Birth of Stair at Druninmrcliie in Ayrshire. At Mauchline Grammar Sehool. At Glasgow University as Student. Laureate in Arts. Conies to Edinburgh. Serves in Glencairn’s Regiment in the War of the Covenant. Elected, after examination, Regent at Glas¬ gow Univei’sity. Visitation of the University—takes part in Overture as to College rents—and in call of Robert Baillie, as Professor. Marries Margaret Ross of Balneil in Wig- tonshire—resigns and is re-appointed Regent. Visits Edinburgb to petition for relief of College from excise. Resigns office of Regent. February 17—Admitted Advocate. March 17—Goes to the Hague as Secretary to the Commission sent to Charles by Parliament of Scotland—One of the Commission for revising the laws. Goes to Breda as Secretary to the Com¬ mission sent to Charles by Parliament— arrives there 15th March—returns to Scotland with the Closed Treaty. May 20—Sent to meet the King at his landing in Scotland. Charles i. crowned at Holyrood. 28th February—The Covenant signed in Greyfriars Church. Glasgow Assembly. Pacification of Dunse. 3d November—Long Parliament meets. Charles l. visits Scotland. 4th January—Arrest of the Five Members. 23d October—Edgehill. 3d July—Marston Moor. 10th January—Laud beheaded. 14th June—Naseby. 5th May—Charles surrenders to Scots at Newark. 4th October—Cromwell in Edin¬ burgh. 30th January—Charles l. be¬ headed. 5th February—Charles ii. pro¬ claimed King at Edinburgh. 20th April—Montrose lands in Scotland, is taken prisoner, and beheaded 21st May. 23d June—Chaides ii. lands at Bogue of Gight. 3d September—Dunbar. xviii CHRONOLOGICAL TABLE. 1651. ]652. 1653. 1654. 1655. 1657. 1658. 1659. 1660. 1661. 1662. 1663. 1664. 1665. 1666. 1667. 1668. 1669. 1670. 1671. 1672. Practises as Advocate. 1st J aiiuary—Charles II. crowned at Scone. 1st September — Monk takes Dundee. 3d September—Worcester. 18th May—Commissioners ap¬ pointed in Scotland for Ad¬ ministration of Justice. Refuses to take the Tender. Appointed Judge by Monk—his appoint¬ ment confirmed by Cromwell. Confers with Monk previous to his march to England. Visits London with Lord Cassilis after Restoration. Appointed Judge of Court of Session by Charles ll. Refuses to sign Declaration. Resigns his office of Judge—his place declared vacant—visits London, satis¬ fies Charles, and is restored—visits Paris —Created baronet. 16th December—Cromwell Lord Protector. Monk Commander-in-Chief in Scotland. 19th July—Engagement at Loch Garry. Cromwell’s Council for Scotland appointed. 8th May—Cromwell refuses the title of King. 3d September—Death of Crom¬ well. 18th November—Monk marches towards England. 1st January—Monk enters Eng¬ land. 4th February — Marches into London. 29th May—Charles ii. makes his entry into London. 1st January—Scotch Parliament meets. 28th May—Earl of Argyle be¬ headed. Episcopacy restored. Fall of Earl of Middleton. Lauderdale Minister for Scot¬ land. Marriage and death of his daughter Janet, the Bride of Lammermoor. One of the Commissioners for Scotland to treat of the Union. January 7—Appointed President of Court of Session. M.P. for Shire of Wigton—Act regulating the Judicatories. 24th April—The Plague breaks out in London. Dutch defeated by Monk and Prince Rupert. Peace of Breda. 2d September—Fire of London. 27th November—Pentland Hill. Triple Alliance. Government of the Cabal. GHRONOLOOIGAL TABLE. XIX 3673. Again M.P. for Shire of Wigton. 1674. Secession of the Advocates. 1676. Town-Council of Edinburgh order his house-rent as President of Court of Session to he paid. 1677. Supports a more clement policy towards Covenanters—opposes bringing High¬ land Host into West Country and the Bonds of Peace. 1678. Convention of Estates in which Stair re¬ presents Wigtonshire. 1679. Visits London to defend Court from charges made against it—Speech to Duke of York at Holy rood. 1681. M.P. for Wigtonshire and on Committee of Articles—Stair’s Act as to Execution of Deeds—Test Act—retires from office rather than take Test—publishes the Institutimis of the Law of Scotland. 1682. Takes refuge in Holland. 1683. First volume of Stair’s Decisions pub¬ lished. 1684. 1685. Outlawed for treason. 1686. Publishes Physiologia Nova Experimen¬ tal is. 1687. James Dalrymple, Master of Stair, Lord Advocate—Stair’s outlawry remitted. Second volume of Stair’s Decisions pub¬ lished. 1688. Returns with William of Orange. 1689. Again President of Court of Session. 1690. Attack on himself and family by the Club —publishes his Apology —Created Vis¬ count. 1691. Supports Embodiment of Militia. 1692. His wife dies. 1693. Second edition of the Institutions of the Law of Scotland published. 1694. 1695. Vindication of Divine Perfections pub¬ lished. November 25—Death of Stair. 29th March—English Test Act. January—Execution of James Mitchell for attempt to mur¬ der Archbishop Sharpe. 12th August—Popish Plot. 1st May—Murder of Archbishop Sharpe. 27th May—Habeas Corpus Act. 1st June—Drumclog. 22d June—Bothwell Bridge. Duke of York in Scotland. Trial and conviction of Earl of Argyle, who escapes from prison 19th December. 19th October—Shaftesbury with¬ draws to Holland. 14th June—Ryehouse Plot. 6th Feby.—Death of Charles ii. 30th June—Argyle beheaded. Newton’s Principia published. 5th November—Prince of Orange lands at Torbay. 14th March — Convention in Scotland. 26th May—Killiecrankie. 20th July—Episcopacy abolished in Scotland. 1st July—Battle of the Boyne. February—Massacre of Glencoe. Inquiry as to Glencoe. II faut eclairer I’histoire par les lois et les lois par I’histoire. — Mon¬ tesquieu, L'Esprit des Lois. Certe cognitio ista (i.e. jiirispriidentia3 cognitio), ad viros civiles proprie spectat; qui optime nornnt quid ferat societas humana, quid salus populi, quid gentium mores, quid rerum publicarum formes diversee; ideoque possint de Legibus ex principiis et preeceptis tarn eequitatis naturalis quam politices decernere.— Bacon, De Dignitate et Augmentis Scientiarum, Lib. viii. Scotch Judge. —Wbaur did ye get that frae ? Scotch Advocate. —From Stair, my Lord. Scotch Judge. —Na, na. There’s nae nonsense in Stair. CHAPTEE I. 1619-1C37. Ancestry of James Dalrymjile, afterwards Lord Stair—William Dalrymple, a cadet of the Dalrymples of Dalrymiile, acquired the small estate of Stair in Ayrshire hy marriage with Agnes Kennedy in reign of James ll.—Their son William mar¬ ried Marion Chalmers of Gadsgirth, one of the Lollards of Kyle—The great- grandson of Marion Chalmers, great-grandfather of Lord Stair, James Dalrymple of Stair, belonged to the party of the Assured Lords, and was an adherent of the Reformed Faith—His son, James Dalrymple, also a Protestant, joined the association of 1567 in favour of James vi.—Neither the grandfather nor father of Stair notable—His mother, Janet Kennedy, sprang from a fandly which had taken the side of the Reformers—Stair born in 1619 at Drummurchie—His father died when he was five years old—Soon after which he was sent to Mauchline Grammar School by his mother—Groundless tradition of his father’s murder —Stair went to Glasgow University in 1633, and graduated in arts in 1637— Description of Glasgow at this period. The attempt has been made in the following memoir to delineate the life of the greatest lawyer Scotland and one of the greatest Britain has produced. Though specially attractive to members of his own profession, to whom it affords an ex¬ ample of well-directed talent and indomitable perseverance, others besides lawyers may perhaps learn something from a life of Lord Stair. The age in which he lived was one of the most memorable in our national histoiy, and he played, though not a leading, yet an important part in it. Tlie life of an ordinary Scotchman or Englishman, who had lived through all and taken part in many of the great events of the seventeenth century, w'ould probably afford some points of general interest. But he was no ordinary man who, after seiwdng in the opening scene of the civil war, became one of the earliest professors of philosophy in Glasgow, who went as secretary to the Commis- ^ A. 2 LORD STAIR. sioners from the Scotch Parliament to Charles ii. at the Hague and Breda, who was the intimate of Monk and Lauderdale and the companion of William of Orange in his voyage to England, who twice raised himself to the Presidency of the Supreme Court in his native country, and wrote the earliest and the best complete treatise on its laws. The temptation indeed is great to enlarge the canvas and endeavour to show the manner in which Scotland passed through the vicissitudes of this revolutionary era, the last in which it held an independent place in political affairs, and to explain the influence it exercised on the settlement of the civil and ecclesiastical constitution of the United Kingdom. But the history of this period will here be touched on only so far as requisite to elucidate the life and character of Stair. Por this purpose, however, it is necessary to enter more into general history than persons acquainted with Stair only as a lawyer would anticipate. The troubles of the closing years of the reign of Charles l., the brief but pregnant interlude of the Commonwealth—a period scarcely enough noticed by Scotch historians, the Kestoration and reigns of the two last Stuart kings, and the completion of the Eevolution settlement in Scot¬ land, were the scenes in which the drama of his life was acted. James Dalrymple, afterwards Lord Stair, was born in a station which makes it worth while to cast a glance backward beyond his parents at his ancestry. The family from which a Scotch gentleman of this time sprang was one of the conditions almost certain to affect his future life, and in the case of Stair its influence may readily be observed. His father, James Dalrymple, was laird of Stair, a small estate of 168 Scotch acres, situated in the district of Kyle,^ in Ayrshire, on the ^ Kyle is the central district of Ayrshire, between the Boon and the Irvine, and is subdivided by the Water of Ayr into King’s Kyle on the south, and Kyle Stewart on the north. “ Near to this place,” i.e. Uchiltree, “to the westward, on the river Air, in King’s Kyle, is situat Stair, the in¬ heritance of .Tames Dalrymple, Knight and Baronet, who being learned in the ANCESTRY OF STAIR. 3 southern side of the Water of Ayr, about halfway between the town of Ayr and the village of Mauchline. This estate had come to the family through the marriage, in the reign of James ii., of William Dalrymple, a cadet of the ancient house of Dalrymple of Dalrymple, which can be traced as far back as the reign of Alexander ill., with Agnes Kennedy, heiress in right of her mother of the barony of Stair IVIontgomery. A dispensation by Bishop Kennedy of St. Andrews, as the Pope’s delegate permitting the marriage, though within the forbidden degrees, is extant amongst the Stair papers.^ Their son, Wil¬ liam Dalrymple of Stair, the lineal ancestor of Lord Stair, in the seventh generation, married a daughter of Sir John Chal¬ mers of Gadsgirth. This lady, ]\Iarion" or Isobel Chalmers, laws, was admitted an ordinar judge of Session in the first nomination and settlement of the judicatory by Charles the Second” (his appointment as judge by Cromwell is passed over in silence), “after his Restoration anno 1661, and President anno 1671. And being removed from that office in the year 1681, was by their Majesties restored to be President of the Session in the year 1689. And in anno 1690 was created Viscount of Stair.”—Second Edition of Camden’s Description of Scotland, Edinburgh, 1695, by Sir James Dalrymple of Borthiuich, the second son of Stair. The extent of the estate of Stair is stated at 168 acres in the Statistical Account of Scotland. 1 “ The surname of Dalrymple was first used by Adam de Dalrymple, who possessed the barony of Dalrymple in the reign of Alexander iii. There is a charter in the rolls of King Robert in., the first year of his reign, anno 1371, ratifying a gi'ant which Malcolm filius Gilchrist filius Adae de Dal¬ rymple made of the half of the barony of Dalrymple to Sir John Kennedy, and the granter having then a son, John Dalrymple, who gets a charter about the same time of the whole dominium de Dalrymple, it is no stretch, but a very modest computation in chronology, to place Adam, the great-grandfather, as high as Alexander in.’s time.”— Crawford’s Peerage, p. 451, Note A. The same author observes. Note D, “ The Montgomeries of Stair were cer¬ tainly one of the ancientest and best extracted families in Airsbire. I observe that Allan de Mundegumbri del Conto, de Ayr, their ancestor, is in the Rag¬ man Roll or the submission of the Scots Barons to Edward i. of England, anno 1296.” “Adam de Dalrymple,” we are gravely informed by the author of the life of Stair’s grandson, John Earl of Stair, “was a gentleman of un¬ common parts and deep penetration.”— Life of John Earl of Stair, p. 6. ^ It is uncertain w'hether her name was Marion, as Forbes states he saw her called in writings in the E.arl of Stair’s hand,—Preface to Forbes’s Journal, p. 29,—or Isabella, as she is named by Knox and by Nisbet. 4 LORD STAIR. was one of the Lollards of Kyle, as these precursors of the Reformation were named from the district in which they chiefly dwelt, against whom the Scotch Parliament directed an Act in 1424. She is mentioned by John Knox as one of the members of that sect who were summoned in 1494 before King James iv. and his Great Council, by “ Robert Blackadder called Archebishope of Glasgow.”^ The great-grandson of Marion or Isobel Chalmers, the great-grandfather of Lord Stair, James Dalrymple of Stair, was amongst the earliest and firmest pro¬ fessors of the Reformed Faith. He belonged to the party of the Assured Lords, who, under the protection of Henry vill., and tlie leadership of Matthew, Earl of Lennox, and William, Earl of Glencairn, a name we shall meet in the life of Stair, opposed the Regent Arran, who of vacillating disposition and alarmed at Henry’s ambitious tactics had abjured the new doctrines. For his share in the gathering^ at the Muir of Glasgow in 1544, Dalrymple incurred forfeiture for treason, but this for¬ feiture was remitted in 1555. His son inherited, with the name and estate, the principles of his father. His signature is attached, along with a number of barons and gentlemen of Kyle, Cunningham, and Carrick, to the memorable Bond for the maintenance of the preaching of the Gospel, and the defence of the whole body of Pro¬ testants within the realm, entered into at Ayr on 4th Sep¬ tember 1562. The second James Dalrymple joined the Duke of Chatelherault in opposing Queen Mary’s marriage to Darnley, and for the part he took in the Duke’s attempt to seize Darnley the family estate was again forfeited in 1565, but was restored in the following year. ^ See the curious account of the Lollards of Kyle, their articles, thirty- four in number, and their trial, in which Adam Eeid de Barskymming, their leader, triumphs over Blackadder, in Knox’s History of the Reformation, p. 17. 2 As to this gathering, see DiurnaU of Occurrents in Scotland, p. 32, and Tytler’s History, iii. 24. ANCESTORS ON BOTH SIDES, REFORMERS. 5 After the murder of Darnley, he was one of those who engaged in the Association of 15G7, by which the Con¬ federates ' bound themselves “ to inaugurate the Prince, and with all their strength and forces promote, concur, fortifie, and assist in the promoting and establishing him in his kingdom and government, as becomes faithful and true subjects to do to their Prince.” ^ Neither the grandfather of Lord Stair, John Dalrymple of Stair, nor his father, James Dalryinple of Stair, rose out of family into national history; the former succeeded to tlie estate of Stair in 1586, the latter in 1620.® The mother of Lord Stair was Janet Kennedy, daughter of Fergus Kennedy of Knockdaw by Helen Cathcart of Carleton. His maternal ancestors,^ like his paternal, were noted ad¬ herents of the Eeformation. He was thus descended, on both sides, from those independent landed men to whose swords, as well as to the words of the preachers and the blood of the martyrs, Scotland owed her Eeformation, In the month of IMay 1619, in part of the farm buildings of Drummurchie, or Drummorchie,® in the parish of Barr and dis¬ trict of Garrick, in Ayrshire, James Dalrymple, afterwards Lord Stair, was born. That farm, now the property of his descendant. Sir James Fergusson, then belonged to his father, and his mother is said to have given birth to her child there on a journey home- ' Amongst the signatures to the Boml besides that of Dalrymple we find Alexander, Earl of Glencairn, “the good Eai-1,” son of that William, Earl of Glencairn, with whom Dalrymple’s father fought at Glasgow Muir, and ancestor of William, Earl of Glencairn, under whom Stair served in 1639, .as well as that of James Chalmers of Gadsgirth, the representative of the family of Marion Chalmers, the ancestress of Stair. ^ Crawford’s Pierage, p. 453. 5 See their titles to the estate, Mag. Sig., Lib. xliii. No. 311, Lib. xlix. No. 309. The former is a Charter, in 1603, to John Dalrymple in liferent, and his son James in fee ; the latter is a Charter of Confirmation, 1620, to •Tames D.alrymple and his spouse .J.anet Kennedy in liferent, and to the heirs and assignees of James in fee, Forbes’s Preface, p. 29. ’’ Statistical Account of Scotland, Ayrshire, p. 409. 6 LORD STAIR. wards to Stair Iroiii a visit in the North. There is no trust¬ worthy record ^ of his having had either brothers or sisters, and at the age of five he lost his father. The tradition that his father was murdered, and that Stair forfeited his estate by kill¬ ing the murderer and was obliged to fly the countrythough narrated by his descendant Sir John Dalrymple of Cranston, has never received corroboration, and is destitute of internal probability. There is no evidence of either of the alleged murders, or that the estate, twice forfeited by his ancestors, was at this time forfeited by Stair. It does not appear that he ever quitted Scotland till sent to Holland in 1649, and from 1633 we have a nearly continuous record of his life. Such an act of vengeance would be quite inconsistent with a character which his admirers have described as mild, his detractors as cunning, but no one as passionate or resentful. The story is an instance of the falsehoods which find their way into history—unfortunately not the last we shall encounter in the life of Stair. Like many other men of note, he owed much to his mother, who, Torbes® tells us, was “a woman of excellent spirit,” and “ took care to liave him welLeducated.” 1 The anonymous author of the Life of John Earl of Stair, however, says that “ Stair beuig only a younger brother, was trained up for a liberal em¬ ployment,” but gives no authority ; and there is no evidence for this state¬ ment, apparently introduced to excuse Stair having held such a position as that of a Professor.— Life of John Earl of Stair, p. 6. 2 “ He lost his estate in his youth for killing the murderer of his father, and was obliged to fly from his country.”—Sir John Dali-ymple’s Memoirs of Great Britain and Ireland, i. 217. ^ Preface to Forbes’s Journal of the Session, p. 30. William Forbes, advo¬ cate, the author of this Preface, better known by his treatise on Teinds, is the best authority for several of the facts in the life of Stair. His Preface was published in 1713 under the sanction of Hew Dalrymple, Stair’s third son, and successor in the office of President of the Court, from whom, as well as other members of the family, there is no reason to doubt he must have derived his information with respect to Stair ; indeed he says himself, “ I had information and light about the Session and those heroes who have given pains to preserve and commemorate the decisions partly from the MAUCHLINE SCHOOL—GLASGOW UNIVERSITY. In 1629, or perhaps earlier, he was sent by her to the Grammar School of jMauchliue, whence he proceeded to the University of Glasgow in 1633, the year in which Charles l. was crowned at Edinburgh. The earliest mention of his name in the records of that university, which, under a succession of learned Principals, sustained the reputation it had acquired under Andrew Melville,^ is in March 1635, when he was en¬ rolled amongst the students of the higher classes.^ He again appears as the first in the list of Laureates or Graduates in Arts on 26th July 1637.^ The list is divided into classes, and he was undoubtedly in the first class, but whether the arrangement in the class itself, which is not alphabetical, expresses order of merit is not quite certain.'* The talents of Stair, however, had certainly been recognised during his college course, for it was at the request of some of the Professors that he returned four years later to compete for a vacant place as Eegent. The Principal, during the whole period of his connexion with the university both as student and afterwards as Eegent, was Ur. John Strang,® one of the records and history, partly from the honourable and worthy persons followf- ing : Sir llwjh Dalrymple of North Berwick, Lord President of the Session, . . . Sir David Dalrymple of Hailes, late Qiiecn's Advocate (a grandson of Stair, the father of Lord Hailes), Sir James Dalrymple of Borthwick, Baronet (second son of Stair).” ^ Of Glasgow^ under Melville his nephew says, “ There was no place in Europe comparable to Glasgow for guid letters during these years, for a plentiful and guid chepe mercat of all kynd of languages, artes, and sciences.” 2 Munimenta Universitatis Glasguensis, hi. 88. iv. Nonas Martii ascripti sunt ex superioribus classibus (amongst others) Jacobus Danimplius. ® Munimenta, in. 22. Laureati vii. Calendas Sextilis, anno 1637. ^ Dr. Laing says, however, with reference to Robert Baillie, whose name appears in the same place in the list of graduates of 1620, he took “the degree of Master of Arts probably with some distinction, as his name stands first on the list of graduates.”—Memoir of Baillie prefixed to his Letters, p. xxiii. ® Strang w'as admitted Principal 22d February 1626, two years after the resignation of Princij)al John Cameron, a divine of note in the French Pro¬ testant Church, who had been Professor at Sedan and Saumur before he came to Glasgow as Principal, where he only remained twelve months when 8 LORD STAIR. correspondents and father-in-law of Kobert Baillie whose busy pen lias left so vivid a picture of Scotch affairs in Church and State, and preserved many of his contemporaries from oblivion. Baillie, although much in the society of Stair at a later period as fellow-professor in Glasgow, and his companion on his first visit to Holland, unfortunately tells us nothing concerning him, but his 'letters show the scenes and the men amongst whom his youth and manhood passed. The men we shall afterwards come in contact with ; but it is worth notice how different Glasgow in the middle of the seventeenth century was from the teeming hive of industry which has now succeeded it. Its population was under 14,000. Its extent was limited to the small portion of the modern town which forms the ancient royalty, and was surrounded by a stone wall with eight ports or gates. The venerable Ctrthedral, which dates from the end of the eleventh century, the College, founded in the middle of the fifteenth century, the Bishop’s Palace and Tolbooth, the broad and clean streets, and noble river, moved the admiration of travellers, who compared it with Oxford. One of these describes it “ as the non-such of Scot¬ land, where an English florist may pick up a posieanother be returned to France, became Professor of Divinity at Montauban, and died in 1625 at tbe age of forty-six. His works were collected after bis death by bis pupils, Louis Cappel and Frederic Spanbeim, and published at Geneva. His doctrine, which leant to Arminianism, admitting the possibility of the salvation of all men, was followed by a party in the French Protestant Church called after his name, but more commonly Amyraldists from his pupil Amyraut.—See Life by Irving. At Glasgow bis lectures, as we learn from Baillie, inculcated conformity and passive obedience (Memoir of Baillie by D. Laing, p. 26). His opinions on these points probably rendered his residence at Glasgow shorter than it otherwise might have been. The pre¬ decessor of Cameron as Principal, Robert Boyd of Trochrig, held the office from 20th January 1615 to 31st January 1623. BaiUie mentions his ability and the flourishing state of Glasgow in his time in the Epistola ad Lectorem prefixed to Boyd’s Commentary on the Ephesians published in 1652. An account of the writings of Boyd and Cameron will be found in Dr. Walker of Carnwath’a Lectures on Scotch Theolorjy in the Sixteenth and Seventeenth Centuries, p. 5. GLASGOW IN THE SEVENTEENTH CENTURY. 9 “ as not so big nor so rich, yet a much sweeter place than Edin¬ burgh.”^ The source of its future prosperity was already visible. In 1610 it was called, not quite accurately, “the most famous town for merchandise in Scotlandfor its customs were, even in the time of the Commonwealth, under £600, rather less than those of Aberdeen, and a fourth of those of Leith. Half a century later its merchants were quaintly said “ to be stuffed with merchandise as their ships swell big with foreign commodities, and returns from France and other remote parts, where they have agents and factors to correspond.” ^ In literature, notwithstanding the eminence of its university, then the first in Scotland, Glasgow did not occupy so high a place. Tlie first printer came there in the year Stair left college as a graduate, and though he issued several of the works of David Dickson and Zachary Boyd, Baillie and others of Stair’s colleagues as professors pub¬ lished in London, Edinburgh, Eotterdam, or Leyden. It was amidst such surroundings, in a town which was a quiet yet active centre of education and of trade for a small country, that Stair spent ten years of his early manhood actively engaged in the work of education. But before his return to Glasgow as a teacher he repaired to the capital, at that time the theatre of the religious and political movement which was to end in the Involution. ^ Ray’s Memoirs, p. 159 ; published by the Sydenham Society. 2 It was not, however, till the Union that the great trade of Glasgow commenced. “ Glasgow is a great city of business,” writes Defoe in 1727, “and has the face of foreign as well as domestic trade, nay, I may say ’tis the only city in Scotland that apparently increases in both. The Union has indeed served its end to them more than to any other part of the kingdom— their trade being formed by it; for as the Union opened the door to the Scots into our American colonies, the Glasgow merchants presently embraced the opportunity.”—Defoe’s Tour in Scotkirul. CHAPTEK II. 1638-1647. Early manhood—Stair in Edinburgh—Sketch of political position at this period— Stair serves in the Earl of Gleucairn’s regiment in the civil war—Elected a regent or professor in Glasgow University—Subjects of instruction at this time in the University—His contemporaries as professors, Principal Strang, Robert Baillie, David Dickson—Overture as to the college rents—Takes part in Baillie’s settle¬ ment as professor—-Stair marries Margaret Ross of Balneil, and is re-elected regent—Sent to Edinburgh to claim exemption from excise for the University— Resigns office of regent—Influence of University training on Stair. After taking his degree Stair came in 1638 to Edinburgh, and “ there never was,” says Forbes,^ “ in Scotland a more im¬ portant scene than that he had first occasion to open his eyes on.” Nor is tliis expression exaggerated. The events which cost Charles l. his crown and life, and restored Presbyterian¬ ism as the form of government of the Scotch national church, had then reached their crisis.^ For nine years no parliament had been summoned in England, and those which sat in Scot¬ land had sat only to register the Acts of the lords of the articles, whose election, an innovation ® introduced by James vi., had 1 Forbes’s Preface, p. 30. 2 The last EugUsh Parliament had been dissolved by royal proclamation in March 1629. ® “ Hitherto, in the election of the lords of the articles, the temporal had nominated eight of the spiritual, the spiritual eight of the temporal, and the commons equal proportions of their own order for the shires and bofoughs. An important innovation W'as now introduced; eight noblemen were chosen by the prelates, eight prelates were again appointed by those nobles; the sixteen selected an equal number of burgesses and lesser barons from the third estate.”—Laing’s History of Scotland, i. 81. POLITICAL POSITION OF SCOTLAND. 11 j)laced in tlie liands of the bishops the noiiiiiiees of the king. The trial and condemnation of Lord Balmerino in 1G35, under the old Acts^ against leasing-making, for statements in a petition to the king, neither presented nor published, and surreptitiously obtained, had roused the indignation both of the nobility and the people, which his tardy pardon had not appeased. For the first time since the Eeformation a churchman. Archbishop Spottiswoode, was appointed to the high office of Chancellor of Scotland in 1636. In June 1637 Prynne, Bastwick, and Burton^ were pilloried in Old Palace Yard, Westminster, for libels on Archbishop Laud. That prelate, for whose ambition the See of Canterbury was too narrow a sphere, had obtained in the previous year the royal sanction to Canons for the regulation of the Scotch church, under which presbyteries were indirectly abolished and the font and altar, with attendant ceremonies, made compulsory in every clmrch. In July his attempt to force a liturgy or service-book upon Scotland was made. It was met by the opposition of the great bulk of the nation, of which the stool of Jenny Geddes,^ flung at the head of the Dean of Edinburgh in St. Giles’s Cliurch, was the rude symbol. In November of the same year the trial of the right to levy ship-money had commenced, and in April 1638 judgment was given against Hampden, who became, in the words of Clarendon, the most famous man in England. On the 1st of March, by which time Stair had pro- 1 As to Balmerino’s trial, see Burnet’s History of his Own Times, i. 22. Laing, i. 106. ^ “William Prynne, B.arrister, Dr. John Bastwick, and the Rev. Henry Burton, minister of Friday Street Church. Their sin was against Laud and his surplices at All-hallowtide, not against any other man or thing.”—Carlyle’s Cromivell, i. 75. ^ “ No sooner was the book opened by the Dean of Edinburgh, but a num¬ ber of the meaner sort, with clapping of their hands and outcries, made a great uproar, and one of them, called Jane or Janet Geddes (yet living at the writing of this relation), flung a little folding-stool, whereon she sat, at the Dean’s head, saying, ‘ Out thou false thief, does thou say the mass at my lug?’”—Quoted from Baker's Chronicle, 5th Ed. 1670, by Carlyle, ibid. i. 76. 12 LORD STAIR. bably come to Edinburgh, the Covenant, prepared by the leaders of the tables, Alexander Henderson, the foremost of the Scotch clergy, and Archibald Johnston of Warriston, the uncle of Bishop Burnet (afterwards Stair’s colleague on the bench), and revised by Lords Balmerino, Loudon, and Kothes, was signed in Greyfriars Church by great numbers of both sexes of every rank and of all agesJ It was speedily circulated throughout the country, and in two mouths all Scotland, except Aberdeen ^ and the surrounding district, and the towns of St. Andrews and Crail, had adhered to it. Few movements in history can more truly claim the name of national Not satisfied with the am¬ biguous concessions of the King’s Covenant,^ a device of the royal commissioner, the diplomatic Marquess of Hamilton, the General Assembly, which met at Glasgow^ on 21st November 1638, refused to separate at his bidding, condemned the errors of Papacy and Arminianism, the articles of Perth, the canons and liturgy of Laud, abjured prelacy, deposed the bishops, and established the Presbyterian polity. The step was short from 1 Baillie’s Letters, i. 52, 62. Laing, i. 136. ^ Laing, i. 137. “ Of noblemen at home,” writes Baillie to Spang on 5th April, “ who are not counsellors or papists, unto which it was not offered, I think they be within four or five who hes not subscryved. All the shyres have subscryved by their commissioners, and all the tonnes, except Aberdeen, St. Andrews, and Craill; yea, the particular gentlemen, burgesses and minis¬ ters, have put to their hands; and the parishes throughout the whole country where the ministers could be persuaded on a Sabbath day, all have publicly with ane uplifted hand, man and woman, sworn it.”—i. 62. ^ See Baillie, i. 106, 112, 115, 119. By the King’s Covenant the king bound himself to maintain “ religion as professed at present, by which Charles tacitly understood the Episcopal, but left it to his subjects to suppose the Presbyterian religion.” “ It was subscribed with three different explana¬ tions ; by the privy council in its original sense, that is, exclusive of prelacy ; by the professors of Aberdeen with a reservation of Episcopacy, and by Hamilton with an additional reservation of the real presence in the Eucha¬ rist.”—Laing, i, 143. ■* Of this famous assembly, besides its own Acts during its twenty-four sessions or sittings, from 21st November to 20th December 1638, see Baillie’s Letters, and specially his history of it sent to Spang, i. 118, 176, and drawn up at his leisure coming from Dunsehill. STAIR SERVES IN CIVIL \YAR, 1G39. 13 the field of such religious conflicts to the field of arms, and on 7th June 1C39 the army of the Covenanters, under David Leslie, fresh from the victories of Gustavus, confronted the royal troops, led by the king in person, at Dunselaw. In the war of the Covenant Stair commanded a troop in the regiment of William, Earl of Glencairn, and he may have been one of those captains who, Baillie—himself present as preacher to the Ayrshire troops ^—tells us, were “ for the most part barrons or gentlemen of good note,” and who had flying at their tent doors “a brave new colour stamped with the Scottish armes, and this ditton, FOR Christ’s Crown and Covenant, in golden letters.” But it is not quite certain what part Glencairn’s regiment took in the war, though it would appear to have been on the side of the Covenant.^ The Earl himself, although present at the Glasgow Assembly, after¬ wards sided with the Marquess of Hamilton, and withdrew from the Covenanters. In June 1639, he came with Lords Aboyne and TuUibardine to Aberdeen in an English collier, “ having all this time uidiappilie otherways than his forbears, to the losing of heart of all his friends, deserted his countrie.” ® From Aberdeen Glencairn returned home ; but it appears, on the whole, improbable that either he or his regiment was present at the Pacification of Berwick, where Charles yielded a reluctant consent to the demands of the Covenanters on the 11th of June. Stair continued, however, to serve as a soldier * Baillie’s Letters, i. 210, et seq. ^ “ He commanded a troop of dragoons in tlie Parliament’s service.” Sir John Dalrymple’s Memoirs, p. 216 : “From having been a military com¬ mander for asserting and vindicating the laws, rights, and liberties of the kingdom against the little pretended invasions of Charles i., he came to overthrow and trample on them aU in the quality of a civil oflScer under Charles ii.”—Proceedings and Votes of the Parliament of Scotland Stated and Vindicated, 1689. ^ Baillie’s Letters, i. 106 ; Spalding’s History of the Troubles, i. 145. In Gordon’s History of Scots Affairs, 1637-41, p. 109, Glencairn is mentioned in a list of Covenanters; but Gordon adds, “ True it is that some of these afterwards did forsake the Covenanters’ partye.” 14 LORD STAIR. till the beginning of 1641, bnt it is not known whether he took part in the short autumn campaign of 1640, in which the successes of the Scotch army at Newburn and Newcastle forced the King to agree to the treaty of Eipon—the conclusion of which was adjourned to London, where the English Com¬ missioners had to attend the Parliament at last summoned by Charles—too late for peace, but not for civil war. It is in March 1641, when the centre of national strife had shifted from Scotland to London, where the Long Parliament was occupied with the trial of Strafford,^ that Stair next appears. He was in that month elected a Eegent in the University of Glasgow, having been solicited to come forward by some of the professors, his former acquaintances, probably Principal Strang, Eobert Mayne afterwards first Professor of Medicine, and David Monro first Professor of Humanity, who were Eegents when he took his degree. It is a well-authenticated tradition ^ that Stair appeared as candidate at the competitive examination for this office, dressed in buff and scarlet, his uniform as captain in Glencairn’s corps, from which it would appear he was still on active service. His determination to stand was sudden, for in a letter to his cousin? James Chalmers, laird of Gadsgirth, he writes : ® “As for me, in that only am I discontent that I neither had your advice and approbation through the celerity of the occasion to this alteration of my course, nor your opinion since.” He retained his Company for some time, but he had now definitely chosen a civil in¬ stead of a military career, and was himself in the habit of saying that he then exchanged the camp ^ of Mars for that of ' Stratford was impeached 11th November 1640 ; his trial commenced on 22d March, but was superseded by the bill of attainder, which passed the Commons on 21st April, and the Lords on 8th May. He was executed on the 12th May. 2 Forbes’s Preface, p. .30. ^ Printed in Nisbet’s Heraldry, i. App. 5 ; the date is 27th May 1641. ■* Forbes’s Preface, p. 30 : “ A Martis ad musarum castra traductus fuit, to use his own phrase.” REGENT AT GLASGOW UNIVERSITY, 1G41. 15 the Muses. The University Records do not state what were the subjects of the examination in which lie came out first; probably the principal were Logic and Greek.^ The name of one of his competitors has been preserved in the doggerel satire on the Stair family, to which we shall often have occasion to refer:— “ Tho’ non can all Stair’s turns and steps descrie, Let not his Proteous trophy be jiast by, How Captane Staires in syllogistick field, Made Dominie Ronald to his vallour yield; At that first triumph, Glasgow Colledge saw The juggler turn his sword to ferula.”^ The date of his admission was 12th March 1641, and he pro¬ bably succeeded Mr. William Hamilton, who had resigned on the 26th of February. By the oath he took on that occasion he bound himself to attend diligently to the duties of his office and to the business of the College, not to resign before the expiry of six years without leave obtained and on three months’ warning, unless he should marry, in which case he was to resign at once, and not to complain if on a vacancy the interests of the College required that another Regent should be put above him. * The anonymous biographer of John, Earl of Stair, says, p. 6 : “ Syllogistic reasoning and explaining some portions of Greek authors.” An account of an examination for a Professorship in 1619 is given in the Munimeuta Uni- versitatis Glasg., iii. 377. By an oath prescribeil in August 1628, the Regents were to swear before the election, “Se ex numero candidatorum cpii se examinandos sistent aut eorum qui gymnasiarchk proponentur eum qui summe idoneus maximoque Academiae usui futurus videatur electuros.” Munimenta, ii. ,302. For a competition at St. Andrews, see Lament’s Diary, p. 4. There is still a Professorship at Aberdeen to which the election is by examination. The practice of competition went out of use in Glasgow in the beginning of the eighteenth century, but the successful candidate was subjected to a trial, which, however, was almost nominal.— See Munimenta, ii. 385 and 389. ^ Maidment’s Scotch Pasquils, p. 180. Ronald was schoolmaster at Lin¬ lithgow, and afterwards at Stirling. Mr. Maidment’s industrious gleanings in the byeways of Scotch history deserve the gratitude of all students. This collection of Scotch pasquils is specially valuable for the period of Stair’s life. IG LORD STAIR. Although it is not stated in the Records that lie was elected as Professor of Philosophy, and his proper title appears to have been Regent, there is no reason to doubt that philosophy and especially dialectics or logic^ were amongst the subjects he taught, and that he may be regarded as the precursor of Francis Hutcheson,^ Adam Smith,® and Thomas Reid,'^ the fathers of Scottish philosophy. Indeed if the division of subjects con¬ tinued, as is probable, the same as was fixed by the new erec¬ tion® of James vi., while junior Regent, dialectics, morals, and politics, with the elements of geometry and arithmetic, would seem to have been his province. The notes® of one of his students, Robert Law, son of Thomas Law, minister of luch- 1 Murray, Literary History of Galloway, p. 127, takes for granted that these were the subjects Stair had to teach. His intimate acquaintance with geometry is shown by many passages in liis treatise Physiologia Nova Experimentalis. * Hutcheson was born in Ireland in 1694, became Professor in Glasgow 1729, and died 1747. His lectures on Moral Philosophy, originally in Latin, but translated after his death, besides their elegance and philosophical merits which are considerable, are remarkable for the frequent use of phrase¬ ology and ideas borrowed from the civil law. ^ Adam Smith, a pupil of Hutcheson’s (see Dugald Stewart’s Life of Smith) succeeded to his Chair of Moral Philosophy in 1752 (which a Mr. T. Craigie had held in the interval). Reid was elected on the resignation of Adam Smith in 1763. ® See Nova Erectio, in Appendix to Lord Rector’s Addresses. ® These notes (Adv. Lib. 5. 2. 9) are in a somewhat cramped MS. On the first leaf is written :—“ Inchoavimus Compendium Logicae sub viro non parum erudito M“ Jacobo Darumplio, anno domini 1643, Octobris 29,” and on the tast leaf, “ Finem hunc Appendici Compendii Logicae sub Magistro Jacobo Darymplio viro non parum erudito, anno domini 1643, imposuimus Robert. Law.” In 1640 the Visitors had approved of an overture of the Pro¬ fessors, under which it was proposed “ that the first yeare, besyde the Greek Tongue, there be an Compend of Logick taught.”—Munimenta, ii. 455. The books used in Logic will be found in the Ordo et Ratio Studiorum in 1648.— Ibid. ii. 316. I am indebted for these references to Professor T. M. Lindsay of the Free Church College, Glasgow. Law is entered as one of the Novitii in quarta classe Postridie Idus Martii 1643.—Munimenta, ii. 10. There seems little reason to doubt that he is the author of the Memorials edited by Mr. Kirkpatrick Sharpe, a work which shows he had not benefited much by his education in logic. STUDIES AT GLASGOW IN 1G42. 17 innan, have been preserved, and show that between 29th October and 29th December 1643, he gave a course, no doubt repeated at least annually, of exegetical lectures upon logic. The system he taught was cramped with the technicalities whicli the Latin schoolmen had imposed on the Organon of Aristotle, but even formal logic is not without its uses to the future lawyer, whose business largely consists in accurate definition, complete division or distinction, the detection of fallacies, and sound syllogistic reasoning. If we may credit the testimony of Forbes,^ which is corroborated by the internal evidence of Stair’s published works, he did not confine himself to philosophy and logic, but studied hard the Greek and Latin languages, with the history and antiquities of Greece and Lome, in order to the study of the civil law. Indeed a change, presently to be noticed, which was made while he was Eegent, in the order of University instruction must have necessitated his studying and teaching all the branches of the College course. Another subject, not mentioned by Forbes, theology, cannot have escaped tlie attention of the new Eegent, whose youth was passed under the shadow of the Covenant, and in daily intercourse with such divines as Principal Strang, whose moderate opinions, unpopular with the zealots, probably coincided with his own, Eobert Baillie, who, amidst his professional labours and voluminous correspondence, had ever time for a polemic against Canter¬ bury or Arminianism, and David Dickson,^ one of the com¬ pilers of the Directory for Public Worship, already known by his Explanation of the Epistle to the Hebrews, the most learned Presbyterian of his time in Biblical Exegesis. To this study Stair returned in his old age, but the controversies of the clergy led him to treat it in a devotional ratlier than polemical aspect, in his Vindication of the Divine I’erfections. 1 I’refacc, p. 30. ^ See Life of l’)icks()n, by Wotlrow, in Select Biographies, Wodrow Society, ii. 5. B 18 LORD STAIR. During the six years of liis residence at Glasgow, Stair took freqiient part in the management of the College business, an occupation which has sometimes discovered in studious men a capacity for affairs. On 17th September 1642 he joined the other Eegents in an overture “ anent the ordering of the College Eents,” which was addressed to the Commissioners for the Visitation of the Uni¬ versity appointed by the General Assembly at St. Andrews in this year. The occasion of the overture was an ordinance by the Commissioners that every Eegent should educate his own scholars through all the four classes^ or years of the College course, instead of taking them,, as had been the practice in Glasgow (differing in this from the other Scotch universities), for one year only, and so changing their pupils every year. Proceeding on a preamble reciting this ordinance, the over- ^ ture stated that, “ for the expeding and facilitating this present motione, we {i.e. the Eegents) doe of our own accordes unanimously condescend and agrie that the stipends befoir jjossessed by everie Eegent be zet retained, and that the augmentatione already designed to us be his Majesties gracious favour (for reducing our stipends to an ner equalitie) be thus disposed, viz., Fiftie merks for the first and second Eegents a piece, ane hundred merkis for the tliird, two for the fourth, and ane hundred merkis for the Master of Humanitie.^ So that for the further encouragement of those that now have or ^ The four classes were Bajans in the first year ; Semi Bajans, the second ; Bachelors, the third ; and Magistrands, the fourth,—when the philosophical course ended and the students laureated or took the degree of M.A.—D. Laing’s Note to Baillie’s Letters, ii. 39. In 1642 there were 60 Bajans, 40 Seniies, and 20 Laureates attending Baillie’s classes. The origin of “Bajan” is obscure. It has been supposed by some to he a corruption of beatijeune, by others of becjaune (yellow-beak or fledgling). It is connected with two words well known in Medioeval University slang (1.) Beanus, defined in an acrostic, Beanus Est Animal Nesciens Vitam Studosiorum, and (2.) Bejaunium (Bejaune) “cjuod a novis scholaribus nomine jucundi adventus a condiscipulis exigehatur,” see Ducange, Glossarimn. 2 The Regents were sometimes reckoned as five at the time by including the Master of Humanity. VISITATION OF GLASGOW UNIVERSITY. 19 that heirafter sail capesse this our charge that thereby they may be induced to stay the longer therein, that an jiroportion of the first and second Regents above the rest be in all tyme coming re¬ tained. And further, in respect what rent lies beine befoir pos¬ sessed or is now by his Majestie designed is not such a competence of meanes as may encourage us to remain theirin, and not mak it an interim for a further vocatioune. We humbly intreat and repre¬ sent that if the rents and burthens of the Colledge can suffer so much yet further may be appointed as may be thought ex¬ pedient.” This overture was allowed by the Commissioners, but the hopes of the Regents for larger salaries must have been clashed liy the (lualification that if it were found, after the trial of the rents, that the augmentation could not be got, there was to be a proportionate reduction.^ The stipends were afterwards raised, but not till 1649, after Stair had ceased to be Regent, when they were fixed at 500 merks and 50 merks in addition to the eldest. The Visitors’ Acts on the occasion of this visitation afford some interesting glimpses of the Regent’s duties and the course of study then pursued at Glasgow. The Dean of Facidty was enjoined to see to it “ that the Regents be short in their nots,” a rule which Law’s notes show Stair faithfully obeyed, and to which we may perhaps attribute the conciseness that marks his Decisions and Institutions. “ The former lessoune was to be examined before the next was taught,” and “ the Greek text of Aristotle analysed viva voce, and thereafter the summe of the text writtineevery scholar was to have Aristotle’s text in Greek. The practice of disputation, so characteristic of the medimval university, and the effects of which both for good and evil are traceable in every speech and writing of the Scotchmen of this age,^ was preserved. It was ordained “ that the dis- ’ Munimenta, ii. 408. And indeed of other ages. Franklin says of one who was a Seotchinan, a university man, and a lawyer, that he had the right on thi'ee grounds to he disputatious. — Franklin’s Aulobiograpli’j. 20 LOUD STAIR. putes among tlie scliollers continne as they now are in these classes and in the public scholls, and that a way to stir up emulatione in studies betwixt classes be thought upon as the Facultie sail think convenient in theses, themes, disputes, declamations, and otherways.” There was to be a piiblic examination at the commencement of the Session on 1st of October, and before the vacation which began on 1st of June. Each scholar was to have a bible and to speak Latin under a penalty, to wear a gown, to practise lawful games, as golf, archery, and the like, but to abstain from cards and dice.^ The Eegents at this time besides Stair were David Forsyth, David Dickson, David Munro, and William Semple. Munro had the Magistrand or senior, and Stair the Bajan or junior, class. Dickson was Professor of Divinity, Munro of Philosophy, and Forsyth of Logic. Semple is sometimes called Master of the Grammar.^ Mr. Eobert Maine was Professor of Medicine. It was significant of the period that the Commissioners, while they resolved that the Professorship. of Medicine was • not necessary (though Maine was to hold it during his time ^), a new Professorship of Divinity, of which there were already two teachers, the Principal, and David Dickson—was most necessary. To this new Chair Eobert Baillie, then minister of Kilwinning, in Ayrshire, was called ; and in the various steps of his disputed settlement Stair, as Eegent, concurred. Baillie had been nominated by the General Assembly at St. Andrews in 1G41, but the Earl of Eglinton, his patron, and his Pres¬ bytery and congregation interposed difficulties, and the Prin¬ cipal and Eegents, including Stair, addressed him in an urgent 1 Munimenta, ii. 4G5. ® Baillie’s Letters, ii. 87. Baillie in this place mentions that three of the Regents, Munro, Forsyth, and Semple, sided with Principal Strang in the College dispute as to the election of a Dean of Faculty and Commissioners to the Assembly “ all of his own creation to be employed for anie thing he pleased ; ” hut Stair is not named. ^ Munimenta, ii. 467. STAIR MARRIES MARGARET ROSS. 21 letter on 28th June 1642, exhorting him to obey the decision of the Assembly. In his answer he states his unwillingness to come, and says : “ With the Presbyterie I have some hopes to come speed; with my Lord Eglinton and my people I have as yet none at all; their earnestness to stick by me to the uttermost still continues.” ^ He came, however, in the follow¬ ing month, a coolness between him and the Eglinton family —whose eldest son, Lord Montgomery, he had rebuked for excess in drinking, and for leaning to the Marquess of Hamilton —having apparently made him more willing to quit Kilwinning. His discourse on admission, Dc Hcureticorum Autocatacrisi, was delivered on 16th July 1642. In September 1643, we learn from the University records that Stair, now m his twenty-fourth year, was about to marry ; and it being necessary, by the terms of his appointment, that he should resign his office, he did so, but was on the same day re¬ elected Eegent by his colleagues, taking a new and shorter oath, from which the obligation of celibacy and to remain six years Regent were omitted. It may have made the consent of his colleagues easier to obtain, that, in the following year, two of them, Muuro and Dickson, followed his example.^ The wife of Stair was Margaret Ross, elder daughter and co-heiress of James Ross of Balneil, in the parish of Old Luce, in Wigton- shire, the lady round whose memory the superstition and jealousy of her contemporaries and the romantic fiction ^ of Scott have cast a gloom which makes it difficult to discern her true character. She brought him an estate of £500 a year, which, with his own patrimony, must have rendered him independent of the smaU salary of Regent.^ 1 BaiUie’s Letters, ii. 37. ^ Glasgow was, on this point, two centuries in advance of tbe English Universities, which have only recently allowed some of their fellows to marry. ^ Bride of Lammermoor, in which Lady Stair is represented by Lady Ashton. ■* Her sister married, eight years after, Robert Farquhar of Gilmiluscroft, 22 LORD STAIR. On the 21st September of the same year he was present at the meeting of the Comitia of the University when the Mar- tpiess of Hamilton was elected Chancellor—the first layman who had held that office. In 1644 Stair was sent to Edin¬ burgh to represent the college in a claim to be exempted from excise, which was submitted to the Estates of Parliament. To his zeal in the discharge of this mission, the following letter of Lord Loudon to Principal Strang testifies I — “ Peverend and loving Friend, — The Committee of Estaites having taken to their consideratione your desyres anent the immunitie of your Colledge fra the excise, repre- scntit to thame he the heirar, Mr. James Dalrymple, and pressed hardlie hy him according to your priviledge, have condescendit that quhat is spent within the Colledge for thair interteinment sail pay no more; but leist it suld be ane preparative to utheris to sute the lyk immunitie, the Committee wald not condescend to give out any contract or writ heirupon. In the quhilk, or in any uther thing that may concern your good and priviledge of your Colledge, I sail endevor to approve myself “Your loving and faithful friend, Loudoun. “Edinburgh, I March 1644.” The last notice of Stair’s name as Kegent, which occurs in the printed records of the University,^ is on 27th February 1645, when he was present at a meeting of the Faculty of Arts; but he held office till the close of 1647, and though the date^ of his resignation is not given, it was probably in October in Ayrshire. James Dalrymple was one of the witnesses to her marriage- contract, dated 22d Seiitember 1651.—Eohertson’s Ayrshire Families, iii. 55. Murray erroneously says this lady married Sir David Dunharof Mochrum.— Literary History of GaVoway, p. 128. ' Munimenta, i. 29. ^ Munimenta, ii. 310. 3 Murray, in his Literary History of Galloway, 127, says: “In the month of April he intimated to the ];)atrons his intention of retiring; ” for which he cites a MS. communication from the Records of Glasgow University, ACTIVITY OF GLASGOW UNIVERSITY. 23 of that year, when a new Eegent,^ Mr. John Kilpatrick, was admitted. Tlie period of Stair’s Eegency was one of universal activity in the University. The new generation of Scotch reformers, who were then its rulers, preserved the tradition of their predecessors in their honourable zeal for the higher education both in the grammar schools and the universities. The system of instruction and staff of teachers introduced in Glasgow by the new Erection in 1577 was expanded to suit the advancing knowledge of the new century. The greater part of the build¬ ings of the old College, now exchanged for a still nobler edifice, but which were not unworthy of a modest home of learning, were then in progress, and the valuable library was founded about the same time by the munificence of Zachary Boyd,'"^ minister of the Barony, the intimate of Baillie, Avhose active corresi^ondence with Spang, Scotch minister at Eotterdam, is full of orders of books for the College from the Dutch press, which the talents of its authors and the care of its printers then made the most famous in Europe. The residence of Stair at the University had an important bearing on his future life. His reputation was spread by the students, English and Irish as well as Scotch, who at that time frecpiented it. One of these, whose name deserves a grateful notice, IMr. John Snell “ of Uffeton, in Warwickshire, in sending, in 1G70, a donation but I li.ave not found this in the printed Itecords. I owe to the kindness of Professor W. P. Dickson of that University the following later notice of Stair which occurs in the Minutes of the Faculty of Arts for 8th April 1647 :— “Jacobus DalryniiJius Acadeinias inoderatores nionuit ut de successore sibi mature prospiceretur, uam sibi statutum non ultra kalendas sextilis suo in Academia muncre vacare.” 1 Munimenta, iii. 387. Kilpatrick was admitted Itegcnt on 28th October 1647.—MS. Minutes of Faculty of Arts. ^ In 1671 Boyd was chosen Dean of Faculty, and from that time till his death was almost uninterruptedly an ofTice-bcarer in the University.—See Account of Bursaries founded by lum—Deeds instituting Bursaries at Ihii- versity of Glasgow, p. 34. ^ Snell was one of the Novitii m (luarta classo in 1644. 24 LORD STAIR. to tlie College, of Bishop Walton’s great Bible in the Oriental languages, writes to Principal Baillie :— “ SiE,—My education in that place u.nder the tutorage of the tndy honourable and eminent Sir James Dalrymple, oblidges me, in gratitude, to wish you prosperitie, that as your religion and great learning, so also your loyaltie, may make you famous to succeeding generations.” ^ Snell styles this Bible the first-fruits of his affection, having probably already contemplated the foundation of the exhibi¬ tions to Balliol College, Oxford, which he instituted seven years later. It was Stair’s diligence in representing the University which directed the attention of some of the leading men of the capital to his talents, and his own to the profession of an ad¬ vocate. In another respect it was an advantage that his Uni¬ versity career was prolonged beyond the ordinary term. When he came to write on law he wrote, not as a mere lawyer, but as one who had reasoned and taught in other subjects, especially philosophy,—the best antidote to the narrowness of a profession somewhat apt to absorb its votaries in the study of the meaner side of human nature and the pettier details of life. His mind, as we see it exhibited in his Institutions, never forgot the search for principles which had formed its early training. It is this which constitutes the distinction of that work, making it worthy to be read by the philosophical jurist as well as the Scotch lawyer, and may preserve its fame when Scotch law has become matter only of historical interest. Deeds instituting Bursaries, p. 92. Snell was born in Scotland, at Colmonell in Ayrshire, but after his education at Glasgow became Clerk to Sir Orlando Bridgman, who appointed him Crier to the Court of Common Pleas, and afterwards Seal Bearer, when Bridgman became Lord Keeper of the Great Seal in 1667. Ihid. 296. CHAPTER III. 1G48-1G50. stair passes as advocate—Sketclies of some of his predecessors and contemporaries, Sir James Balfour, Sir Thomas Craig, Sir John Skene, Sir Thomas Hope—The leaders of the bar when Stair passed. Sir Thomas Nicolson, Sir John Gilmour, Sir John Nisbet—Difference in the position of the Scotch advocate and in the state of the Scotch law at that and at the present time—Stair goes to Holland as secretary to the Commission from Parliament to Charles ll.—Position of Scotland after death of Charles l.—Proceedings of the Commission—Its failure —Stair appointed a Commissioner for the revision of the laws—The i)revious attempts with the same object—Second Commission to Charles il. at Breda— Stair again secretary—Its proceedings—Stair returns with the Closed Treaty — Stair meets Charles on his landing—Influence of Stair’s visits to Holland— Intimacy between Scotland and Holland since the Reformation—Dutch juris¬ prudence. On 17th Februaiy 1G48 Stair was admitted advocate, hav¬ ing no doubt passed the examination in the Roman civil law which, down to the middle of the following century, formed the ordinary and only honourable mode of entrance to the Scotch bard Neither the bench nor the bar was specially distinguished when he joined the ranks of the latter. The eminent lawyers ^ The civil law thesis required from Intrants to the bar had been intro¬ duced before 1619.—See A. S., 12th February 1619, in Hay Campbell’s Eaidy Acts of Sederunt, p. 75, where it is printed from Pitmedden’s mss., and see further Faculty Minutes, Adv. Lib., 7th November 1664. As to the extraordinary mode of admission without examination, see A. S., 6th July 1680 and 18th January 1684. An examination in Scotch law was first made imperative in 1750. In 1713 Forbes says, “Advocates are sometimes admitted by a trial in the Scots law, in which case the candidate has no speech to the Lords before his admission, but admission upon a trial in the civil law is more honourable.'' 26 LORD STAIR. of the sixteenth century^ had passed away ; those of the seven- teentli whom Sir George Mackenzie, himself eight years Stair’s junior as an advocate, has celebrated, were only rising into fame. A few of these predecessors and elder contemporaries of Stair deserve a passing notice in this place to enable ns better to understand the character of the legal corporation at this time, which always exercises a subtle influence on all its members, and to appreciate the relative importance of Stair’s work as a lawyer. Sir James Balfour of Pittendreich, who died in 1583, has left behind him an evil reputation which his credit as a lawyer cannot redeem. His character for legal capacity rests on a solid basis. He was one of the Commissioners appointed in 1566 for the emendation of the laws and their publication in a correct and concise form; and, though this work was never accomplished, Balfour’s labours resulted in the formation of the Collection of Practicks which bears his name, but was not printed tiU long after his death,^ and in its present shape has received touches from some later hand. This is the earliest law book still quoted in the Courts, and before the publication of Lord Stair’s Institutions was that most frequently referred to.^ He had the art of acquiring office, and was successively Canon of Plisk, a Lord of Session, one of the first four Com¬ missary Judges, Lord Clerk Eegister, Prior of Pittenweem, and President of the Court of Session. Knox has branded him as blasphemous without any clear ground; but of his particdpa- ' The chief lawyers of the sixteenth century had been the Presidents, Henry Sinclair Bishop of Koss, and lieid Bishop of Orkney, the Maitlands of Lethington, father and son, John Sinclair Dean of Restalrig, brother of the President, the collector of the earliest Practicks, Sir James Balfour, Sir Thomas Craig, and Sir John Skene. Of the three last, as coming nearer to the time of Stair and his precursors as writers on law, a notice is given in the text. 2 The Practicks were first published in 1754 by the Ruddimans with a preface which is anonymous, but was written by Thomas Goodall. ^ Goodall’s Preface to Balfour’s Practicks, ]i. 7. PREDECESSORS AT THE BAR: BALFOUR. tioii in the murder of Darnley there seems no reasonable doubt, nor of his betrayal of his accomplice, the Eegent Morton, which led to the execution of the Eegent. His character is thus drawn by Mr. Tytler in dark but not untrue colours in his instructive Life of Craig : “ He had served with all parties, had deserted all, yet had profited by all. He had been the partisan of every leader who rose into distinction amid the troubled elements of these times. Almost every one of these eminent statesmen or soldiers he had seen perish by a violent death,— Murray assassinated, Lethington fall by his own hand. Grange by that of the common executioner, Lennox on the field, Mor¬ ton on the scaffold. Many of these atoned by their death for a life of acknowledged guilt; but theirs was upon the whole consistent guilt. Balfour, on the other hand, acrjuii'cd amid the circumstances in which he was bred an acuteness in anti¬ cipating the changes of party and the probable event of political conspiracy which enabled him rarely to adventure too far, which taught him to avoid alike the determined boldness that brings ruin in the case of failure, and that lukewarm inactivity which ought not to shai’e in the rewards of success.”^ Of higher reputation than Balfour as a lawyer, and a con¬ trast in the purity of his public life. Sir Thomas Craig, the author of the Jus Fendale, written in 1G03, but not published till 1654,^ forty-seven years after his death, was the only ' Tytier’s Life of Craiy, pp. 105, 106. - According to Lord Stair, Craig wrote in 1600, but as he was called to the Bar in February 1563 (Tytler, [>. 29), and says liiniself, in his Dedication, “ quadraginta annis foro nostro me tradidisseni,” Mr. Ty tier’s date, 1603 (Tytler, p. 158), appears the correct one. Stair’s view of his work is sub¬ stantially that of all hater authorities. “ Our learned countryman, Craig of Rickertonn hath largely and learnedly handled the feudal rights and customs of this and other nations in his book De Feudis ; and therefore we shall only follow closely what since his time hath been cleared or altered in our feudal rights, whieh is very much ; for he having written in the year 1600, there are since many statutes and variety of cases which did occur and were de¬ termined by the Lords, and ha\ e been dc rcccnti observed as they were done 28 LORD STAIR. systematic writer on law in Scotland who preceded Stair. The Practicks of Sinclair, Lethington, Balfour, Wemyss, Colville, Haddington, and Sir Thomas Hope, are compilations merely. Craig’s was an original work, and though he disclaims the dangerous merit of novelty, the scope and method of his treatise were his own, and have largely influenced subsequent Scotch law books. This is especially the case in the early chapters where he deals with the origin of law in general, and traces the historical progress of the civil, canon, and feudal laws, and the introduction of the last into Scotland. The censure cast upon his work, that it mixes other feudal laws with Scotch, makes it necessary for the Scotch lawyer to be guarded in its use as an authority, but gives it a place in general as dis¬ tinguished from municipal jurisprudence, and has procured it alone of Scotch law treatises the honour of being edited by a Continental jurist.^ How that feudalism, long since banished from the social system, will soon cease to have any place in by the most eminent of the Lords and lawyers, as by Haddington, who was President of the Session, and by President Spottiswood and by Dury, who continued in the Session from the year 1621 until his death in the year 1642, and though their decisions have been intermitted since that time till Charles ii.’s return, the loss is not great, the times being troublesome, and great alterations of the Lords ; but the decisions of the Lords have been con¬ stantly observed since the King’s return, by which most of the feudal ques¬ tions are determined ; and those things which Craig could but conjecture from the nature of the feudal rights, the customs of neighbouring nations, and the opinions of the feudists, are now commonly known, and come to a fixed custom, neither doth he observe any decisions particularly further than his own time in which our feudal customs could be but little determined, seeing the Lords of Session were unstable and ambulatory tiU the year 1540, in which King James v. did perfect the establishment of the Session in a College of Justice, who at first coiild not be so fixed and knowing in their forms and customs, and therefore it cannot be thought strange if the feudal customs as they are now settled do much differ from what Craig did observe. He hath indeed very well observed the origin and nature of feudal rights, and the customs of Italy where they began, and of France and Eng¬ land whence they were derived to us, and therefore we shall say little as to them.”—Stair, ii. 3. 3. ' Mencken published an edition of Craig’s Jus FtudaU at Leipzig in 1716. CRATQ AND SKENE. 29 the law, the same circumstance affords it a better chance of escaping oblivion. Craig is one of the lawyers whose example deserves to be kept in remembrance as a proof that there is no incompatibility between the cultivation of literature and pro¬ fessional excellence. A good scholar, he used Latin both in prose and verse with facility and elegance, though his poems are not likely to be now read except by the curious.^ He was never Judge of the Supreme Court, having probably declined the office, but he served with credit as Justice-Depute,^ and Advocate for the Church, and in civil causes was one of the foremost advocates. Besides his best-known work, he wrote on the Succession to the English Throne against the Jesuit Larsons who supported the Spanish claim in preference to tliat of James vi.; a treatise of much foresight, on the Union of the Kingdoms, and refuted in his book Dc Homagio with acuteness the assertion, made in the Chronicles of Hollings- head, that Scotland had been an English fief,—a controversy which has been revived in our own day, but has now lost the practical interest which then attached to it.^ A contemporary of Craig, and predecessor of Stair, Sir John Skene, Lord Clerk Eegister, who died in IGll, was the father of the long race of Scotch legal antiquaries, to whom his successors have been somewhat ungrateful. It is true he lacked accuracy, the cardinal virtue in historical research, and the correction of his errors has given much trouble to those who followed in 'his footsteps ; but it was an important step to have first edited those curious treatises, the Regiam Majestatem and Quoniam Attachiamenta, almost the earliest records of Scottish Law, even though his critical sagacity failed to per- ' Craig’s principal poems were the Paraineticon, addressed to James vi. on his departure from Scotland, and the PropempUcon, addressed to the eldest son of James Prince Henry. 2 Tytler, p. 349. 2 See Freeman’s Uisforical Essay.% p. 114 ; the Reign of Edward the Third ; and Robertson’s Scotland under her Early Kings, ii. p. 384. 30 LORD STAIR. ceive their English origin.^ Ilis work, Da Vcrhmnom Significa- tione, though not always trustworthy, has not yet been super¬ seded by any better glossary of ancient law terms. Sir Thomas Hope of Craighall, Lord Advocate of Charles l., and the father of three judges,^ though he did not himself reach the bench, was the most eminent advocate of his time. He died two years before Stair passed for the Bar. His fame does not rest on the IMajor^ and Minor Practicks, the former never published, and the latter inferior to similar collections, though containing some useful historical information, so much as on his astuteness as a lawyer and legislator. He was probably the introducer'* of the irritant and resolutive clauses which were sustained against creditors, as making a valid entail at common law in the case of Viscount Stormonth, and formed the model for the Entail Act of 1685, drawn by Sir George Mackenzie. Another measure which has left as deep traces in Scotch law down to the present time as the law of entail was certainly his handiwork. He was the adviser of Charles l. 1 Craig detected that the Rerjiam Majestatein was a copy of Glanville’s tractate De lefjibus et consuetud'mibus Anglice. It is much to he regretted that he did not fulfil his intention of writing on the subject. “ Plura de his quatuor libris et de eis qui subsequuntiir speciali opusculo post nostras has de feudis lucubrationes exponam,” 1. 8. 11, and it was reserved for Mr. John Da\'idson and Lord Hailes to prove the point. The difference between the two works which their collation in the first volume of the Scotch Acts makes evident, has not yet been sufficiently elucidated. Mr. Eobert Campbell has, how¬ ever, done something towards this in a series of articles contributed to the Journal of Juris 2 >rudence. 2 Lords Kerr, Craighall, and Hopetoun. ^ There is a MS. of this work in the Glasgow College Libraiy, F. 4. 4. * “ But to prevent and remeid them there is a new Form found out w’hich has these two branches, viz., either to make the party contractor of the debt to incur the loss and tinsel of his right, m favour of the next in the tailzie, or to declare all deeds done in prejudice of the tailzie by bond, contract, in- feftment, or comprisin, to be null of the law.”—Hope, Minor Practicks, p. 144. This decision is now reckoned bad law. “Entails are founded on Statute only. It was the unanimous opinion of the Court in the case of Agnew of Sheuchan, that the case of Stormonth was wrong decided, and that entails iiad not a foot to stand upon but the Statute 1685.”—Lord Meadowbank in HOPE, LOUD ADVOCATE OF CHARLES I. 31 ill the famous ^ revocation of all erections of Church lands, teincls, and patronages, made in 1625, which led to the sub¬ missions of the Lords of Erection, clergy, burghs, and tacksmen of teinds in 1628, and the decree arbitral of 2d September 1629, ratified by the Acts^ of 1633, by which the system of valuation and sale of tithes, the corner-stone of the existing teind law, was completed. Hope, like many of the lawyers of the time, was a keen partisan of the Covenant,^ and to his skill and that of Johnston of Warriston is due the legal form with which that party clothed many of its Acts, perhaps also the legal phraseology in which it expressed some of its doctrines. The leaders of the Bar, when Stair passed in 1648, were Sir Thomas Nicolson, Sir John Gilmour, and Sir John Nisbet. Nicolson, the rival of Hope, “ the only man,” according to Burnet,"* “ fit to be set up against the King’s advocate,” obtained Maalowal v. Hami/lon, 2d March 1815, F. C. Stair mentions that Stor- inonth’s case did pass with considerable difficulty, the Court being nearly equally divided. Fountainhall, Historical Notices, 1677, p. 141.—“ As to the original of tailzies in Scotland, with clauses irritant in case of contracting debts, or not taking the name, etc., they are very late, the first of them within these sixty or seventy years ; what was first in Scotland w.as the Laird of Calderwood’s tailzie of his lands, advised by Sir Thomas Hope.’’ 1 Hope drew the Summons of Reduction-Improbation of 1026, as to which see Mr. Burton’s remarks, Hhtory of Scotland, vi. 361. Of the series of measures which regulate the commutation of tithes in Scotland, it has been said, with considerable exaggeration, that it “has conferred, and is confer¬ ring, upon this kingdom such incalculable benefits as xjerhaps condensate the tenqiorary evils inflicted uj)on Scotland by the errors of that unfortunate monarch.” 2 See 1033, e. 14 to 19. 3 “ Many lawyers were of the Covenanters’ side, and chiefly the King's Advocate, Sir Thomas Hope, which was one of the greatest troubles the Manpiis (Hamilton) met with : for he being a stranger to Scottish law, in which the other was skilled as much as any was, was often at a great loss, for he durst advise with him in nothing, and often the King’s Advocate alleged law at the Council Board against wh.at he was luessing.”—Burnet’s History of the House (f Hamilton, p. 53. '' Burnet’s History of the House of Hamilton, p. 53. 32 LORD STxUR. the epithet of Fulmen Fori, but his vehement style of plead¬ ing was relieved by a play of wit; his timid disposition in public affairs confined his distinction to professional success, and though his name occurs in almost all the cases reported by Gibson of Durie, the first Lord Advocate under Charles ii., he never held office. Gilmour,^ who passed in 1628, was remarked amongst the lawyers of his time for his preference of Scotch to Civil law. That this should be remarkable, was a sign that the municipal law was still in its infancy. He gained credit by his defence of Montrose, when prosecuted by Sir Thomas Hope in 1641, and ^ Mackenzie’s Characters, p. 7. “ Gilmoriorum senior, sine ullo juris Civilis auxilio, doctissimus raro miraculo dici poterat ingenioque suo praxin Fori Scoticani juri etiam Romano asquabat. Ilium jura potius ponere quam de jure respondere diximus eique appropinquabant Clientes tanquam Judici potius quam Advocato. Quasi alter etiam Hercules nodosa et nulla arte perpolita clava adversaries prostravit ; sine Ebetorica eloquens, sine Literis doctus. Opposuit ei Providentia Nisbetum, qui summa doctrina consummataque eloquentia causas agebat ut justitite scate in oequilibrio essent; summa tamen arte semper utens artem suam suspectam reddebat. Quoties ergo conflixerunt pones Gilmorium gloria penes Nisbetum palma fuit, quoniam in hoc plus artis et cultus in illo plus naturm et virium. Nicolsonius junior eloquio usus est Fanatico non Eomano; et hinc concionabatur potius quam orabat: documentum posteris futurus iUud ad persuadendum aptius quod seculo licet sordido et judicibus licet hebetioribus placet. Si autem doctus hie orationes posteris transmisisset, Aiigusti seculum (illi notissimuni) imitatus fuisset.” There is a curious criticism on this passage in Boswell’s Tour to the Hebrides : “ Sir George Mackenzie’s Works (the folio edition) happened to be in a window in the dining-room (of the Castle of Dunvegan); I asked Dr. Johnson to look at the Gliaracteres Advocatorum. He allowed him powers of mind, and that he understood very well what he tells: but said that there was too much declamation, and that the Latin was not correct. He found fault with approxnnquahant in the character of Gilmour. I tried him with the opposition between gloria and palma in the comparison between Gilmour and Nisbet, which Hailes in his catalogue of the Lords of Session thinks difficult to be understood. The words are penes ilium gloria penes hunc palma. In a short account of the Kirk of Scotland, which I pub¬ lished some years ago, I applied these words to the two contending parties, and explained them thus, ‘ The popular party has most eloquence. Dr. Robertson’s party most influence.’ I was very desirous to hear Dr. John¬ son’s explication. Johnson —I see no difficulty : Gilmour was admired for his parts ; Nisbet carried his cause by his skill m law.”—P. 255, ed. 1785. NICOLSON—GILMO UR—NISBET. 33 by his opposition to the doctrine of constructive treason, when sought to be applied to the case of the Earl of Argyle twenty years later. He was Stair’s predecessor in the President’s Chair, which he occupied from the Eestoration till his resignation in 1670.^ Nisbet, his chief competitor as an advocate, passed five years after Gilmour, and first distinguished himself as one of the counsel of Lord Balmerino. He became one of the Commissaries of Edinburgh during the Commonwealth, and after the Eestora¬ tion combined for the last time the offices of Lord Advocate and Lord of Session, being appointed to both in 1664. He was noted for his knowledge of Greek,^ and in his Doubts, which Sir John Stewart, Lord Advocate under Queen Anne, answered, has left a record of his acuteness and of a type of mind wliich repeats itself in every generation of lawyers. His fame was tarnished, as that of some other advocates has been, by avarice,^ for which the difficulty of attaining and retaining success and often even a livelihood at the Bar affords some palliation, but no sufficient excuse. The honour of this calling, exposed to pecu¬ liar temptations, requires that the love of justice and not of gain should be its ruling aim. The judges at this period were inferior to the advocates. After the resignation of Lord President Haddington, in 1626, scarcely a name of note occurs in the long catalogue of Lords of Session until Stair’s own, unless exceptions are to be made in favour of Sir Eobert Spottiswoode, son of the 1 His Portrait, by Scougal, is in Smith’s Iconographia Scotica. ^ Burnet’s History of His Own Times, p. 279. He is said to have offered £1000 for a Greek ms., lost when his house was burnt. ^ Nisbet was dismissed from the office of Lord Advocate, for what Wod- row may well call a “very sordid reason,” “having consulted pro et con in the case betwixt the Lord Chancellor and Lord Leven, concerning the entail of the estate of Leven.”—Wodrow, ii. 350. It gives a painful idea of the state of the Bar, when such an offence could be committed by one who held that high position. C 34 LORD STAIR. Arclibisliop and author of the ‘‘ Practicks,” ^ whose attachment to the royal cause brought him to the scaffold in 1646, and of Sir Archibald Johnston of Warriston, more famous as a politician and party leader than as a lawyer, who met the same fate for opposite principles, but not with equal forti¬ tude, in 1663. From these brief notices of the chief lawyers of this period it may be seen how different was the position of a Scotch advocate in the seventeenth from that which he occu¬ pies in the nineteenth century. Besides the ordinary practice of the law, if his talents were considerable he was almost of necessity engaged in political contests. But if he played a nobler game, it was with higher stakes. His liberty, and even his life, were often risked; his integrity was subject to severer trials. The works of such of these lawyers as wrote also indicate the comparatively unformed state of the law at this time. In the common law and practice of the court there were only manuscript collections of decisions to guide the lawyer. The statutes had not been long collected and printed. The feudal branch of the law was most matured, owing to the treatise of Craig ; but the consistency and arrange¬ ment of even this part of Scotch jurisprudence Stair dates from the Eestoration. It has been said that Stair soon obtained extensive practice as a lawyer; but although the reputation he brought with him from Glasgow was doubtless of some service to him, it was rather by procuring for him honourable public employment than early private business. Indeed, the statement which imme¬ diately follows the Piecord of his admission as advocate in the Books of Sederunt precludes the possibility of his having practised much. “ The session was interrupted from the last of February 1648 to the first of June 1649 by the troubles of * Spottiswoode’s Practicks were not published, however, till 1706, by his grandson, John Spottiswoode of that Ilk, advocate. STAIR'S PRACTICE NOT CONSIDERABLE. 35 the country.”^ Before the latter date Stair had gone to Hol¬ land as Secretary to the Commission of Parliament sent to treat with Charles li. at the Hague. He was employed in a similar capacity in the following year when he went to Breda. His refusal of the tender imposed by Cromwell in 1654, by which those who took it were bound to be faithful to the Common¬ wealth of England, without King or House of Lords,^ excluded him from practice at the Bar until the taking of that oath was dispensed with. The interval between this and his ap¬ pointment as judge in 1657 was too short to admit of his having conducted many causes, unless the progress of business and the rise of advocates was much more rapid than in modern times. In order to follow the career of Stair it is now necessary to pass to a wider theatre, and to recur to the course of public affairs, of which from this time forward he ceased to be a mere spectator. On the 30th January 1649, Charles i. had been beheaded at Whitehall. Whatever shortcomings ® there may have been in * MS. Books of Sederunt, Register House, Edinburgh. 2 Stair’s Apology, p. 4. ^ Mr. Carlyle’s estimate of these appears just: “ The faults or misfortunes of the Scotch people in their Puritan business are many ; but, properly, their grand fault is this, that they have produced for it no sufficiently heroic man among them : no man that has an eye to see beyond the letter and the rubric ; to discern, across many consecrated rubrics of the past, the inar¬ ticulate dimness of the present and the future, and dare all perils in the path of that. With Oliver Cromwell born a Scotchman, with a Hero king and a unanimous Hero nation at his back, it might have been far otherwise. With Oliver born Scotch, one sees not but the whole world might have be¬ come Puritan—might have struggled yet a long while to fashion itself according to that divine Hebrew gospel, to the exclusion of other gospels not Hebrew, which are also divine, and will have their share of fultilment here ! But of such issue there is no danger. Instead of inspired Oliver, with direct insight and noble daring, we have Argyles, Londons, and narrow, more or less opaque persons of the pedant species,—Committees of Estates, Committees of Kirks—much tied up in formulas both of them—a bigoted Theocracy without the inspiration, which is a very hopeless phenomenon in¬ deed !”— Cromwell, ii. 153. 36 LORD STAIR. the leaders of Scotch politics at this time, they were not want¬ ing in prompt decision. The nation, though prepared to assert popular rights and to limit the royal prerogative, especially in matters relating to religion and Church government, was strongly in favour of monarchy in preference to the republic felt to be impending in England. On the 5 th of February Charles ll. was proclaimed king at the Cross of Edinburgh, but under the reservation, “That before he be admitted to the exercise of his Eoyall Power, he shall give satisfaction to the kingdom in those things that concern the security of Keligion, the union betwixt the kingdoms, and the good and peace of the kingdom according to the ISTationall Covenant and the Solemn League and Covenant, for which end we are resolved, with all possible expedition, to make ane humble and earnest address to his Majesty.” On 7th February Baillie wrote to his correspondent. Spang, the Scotch minister at Eotterdam:— “ Ane act of our lamentable Tragedy being ended, we are entering again upon the scene. Oh, if it might be the Lord’s pleasure, to perform more happy and comfortable actions than have appeared these years bygone. To the great joy of all, in the midst of a very great and universal sorrow, we proclaimed, on Monday last, the Prince King of Britain, France, and Ire¬ land. We have sent the bearer, a worthy gentleman, to signifie so much to his Majestic at the Hague. We purpose speedily to send a honorable Commission of all Estates.” ^ The bearer of this letter was Sir Joseph Douglas, who arrived at Eotter¬ dam on the 2d of March. On the 6th of that month the Commission was appointed by Parliament, the Commissioners being the Earls of Cassilis and Lothian ; the laird of Brodie ; and Winram, laird of Libberton, the two last afterwards Judges of the Supreme Court; Sir John Christie ; Alexander Jaffray, Burgess and Provost of Aberdeen ; and William Glendin- ^ Baillie’a Letters, iii. 66. SECRETARY TO COMMISSION TO THE HAGUE. 37 ning; ^ but the Commissioners who actually went appear to have been Cassilis, Brodie, Winram, and Jaffray.^ To this Commission Stair was appointed Secretary.* On Saturday the 17th of March, the Commissioners, who were accompanied by a Commission from the General As¬ sembly, consisting of Kobert Blair, Eobert Baillie, and James Wood, as ministers, to whom Cassilis and Winram were joined as ruling elders,^ sailed from Kirkcaldy in John Gillespie’s ship,* and arrived at Eotterdam on the night of the Thursday following, whence they proceeded next day to Delft, where they remained tiU Monday, being informed by some of their friends that the King would be occupied with his Easter devo¬ tions till the succeeding Tuesday. On the afternoon of that day they had their first audience with Charles, when Cassilis spoke in name of the Parliament, and Baillie of the Kirk.® The account of their proceedings may be read at length in the Eeports to Parliament and the Assembly, in the Clarendon State Papers, the Letters of Baillie, and the Diaries of Jaffray ^ and Brodie; but as they have not been described with fiduess by any historian,® and present a curious picture of a scene in ^ Baillie’s Lf,tiers, iii. 507. Copy of the Commissions. See also Act. Pari. vi. 400, 435. ^ Jafifray’s Diarij, p. 54. 2 In the Accounts of the Treasurer of Excise there is a pa 3 Tnent, on 15th March 1649, to Cassilis, of £90 sterling to himself, and £30 to the Secretary ; and on the return of the Commission Stair received a further payment of £478, 6s. 8d. Scots, for the exjienses of the Commission generally. ^ Clarendon, State Papers, iii., App. 85. ® Balfour’s Annals, iii. 392. ® Baillie, iii. 86. See Baillie’s Speech spoken at the Hague in the King’s Bedchamber, Tuesday, 27th March 1649, three o’clock in the afternoon, pp. 84, 85. ^ Jaffray afterwards became a Quaker, and his Diary is more occupied with his religious experiences than political events. ® Mr. Burton, their most recent narrator, docs not accurately distinguish the two Commissions—that to the Hague in 1649, and that sent to Breda in 1650 (Burton’s History of Scotland, vii. 261 et seq.) ; but there was so much of repetition in the proceedings of the two Commissions, that this is not LORD STAIR. o o oo which Stair was ultimately engaged, we shall give a short abs¬ tract of them, as well as of those of the following year. The chief difficulties in the way of the negotiations were the presence of Montrose at court; the belief, on the part of the king’s councillors, that Ireland would be a more favourable stage than Scotland for the recovery of England, and their opposition to the king’s acceptance of the Covenant. The tone of the Commissioners was the reverse of conciliatory. “ Saving that they bowed their bodies,” says Clarendon, “ and made low reverences, they appeared more like ambassadors from a free State to an equal ally, than like subjects sent to their own Sovereign.” The Commissioners from Parliament commenced by de¬ siring the removal of James Graham, “ who, abandoning the Covenant and despising the Oath of God, did invade his native country, and, with most inhumane and barbarous cruelty, did burn and waste divers parts thereof, and who spilt so much blood of your Majesty’s good subjects;” for which crimes he had been forfeited by Parliament and excommunicated by the Kirk.^ The king’s reply was, that he desired to have all the propositions of the Commissioners submitted to him at once.^ A similar demand had been made by the Commis¬ sioners of the Kirk,® and both Commissions, by a second paper, repeated their former request, to which the King^ re¬ joined, that he insisted on his answer already given, and was resolved not to consider any particular proposition until the whole were laid before him. Upon this the Commissioners of Parliament stated their demands, which were. First, That the wonderful. The general movement of Scotch history at this period, and the interlacing of political and ecclesiastical influences is described with great fidehty and grasp by Mr. Burton. 27th March 1649. Act. Pari. vi. 453 ; Clarendon, State Papers, ii. 474. 2 8th April 1649, N.S. Act. Pari. vi. 453; Clarendon, State Papers, ii. 474. ^ 30th March 1649. Act. Pari. vi. 453 ; Clarendon, State Papers, ii. 474. ^ 10th April 1649, n.s. Act. Pari. vi. 453; Baillie, iii. 512, 513. PROCEEDINGS OF THE COMMISSION. 39 King would, by solemn oath, allow the National Covenant of Scotland and the Solemn League and Covenant of Scotland, England, and Ireland; Second, That he would ratify all Acts of Parliament enjoining the Solemn League and Covenant, and establishing Preshyterial government in Scotland, and give his assent to Acts of Parliament enjoining the same in the rest of his dominions ; and Third, That he would consent that all matters civil he determined by the present and subsequent Parlia¬ ments, and all matters ecclesiastical by the ensuing General Assemblies^ The Commissioners of the Kirk presented the same requests in a paper in which the ecclesiastical side of the matter was treated in more detail, requiring an assur¬ ance under the King’s hand and seal, not merely of his acceptance of the two Covenants, but also of the Directory " of Worship, Confession of Faith, Catechism, and the Proposi¬ tions of Preshyterial Government—of all which, as Baillie in¬ forms us, they had given the King a copy, “ hound together in as handsome a hook as we could gett them : ” ® they also demanded that the King should lay aside the use of the Service Book, and conform to the Directory/ The King ® again pressed for an answer whether they had now disclosed all their demands, and whether they had any propositions to make for the recovery of his right in England, and bringing the murderers of his father to justice. The Com¬ missioners ® of Parliament replied that these points were already answered by their former papers, as they were ready to make appear by a conference ; hut Charles, whose conduct through¬ out indicates the adroitness of the diplomatists in his council, 1 April Clarendon, State Papers, ii. 475 ; Act. Pari. vi. 454. ^ Baillie, iii. 514. ^ iii. 87. ^ Baillie, iii. 514. ^ 12 . ° April 2 .y- Act. Pari. vi. 454. 14 . ^ April Act. Pari. vi. 454. 40 LORD STAIR. required^ particular answers, or that it should he made to appear in writing that the former papers contained sufficient answers. The Commissioners thus urged, answered ^ that they had no more demands to make unless commanded by Parliament, that they had no power to recede from any par¬ ticular proposed, but that the people of Scotland were pre¬ pared, if the King granted their just and necessary desires, to do “ all that can be desired or expected from loyal sub¬ jects to their gracious King,” and to contribute to his restora¬ tion to the government of his other kingdoms. The King stated that he was not satisfied by this answer, because it did not say they were to propose nothing more, but only that they were not to do it unless commanded, and because it contained no answer on the point of bringing the murderers of his father to justice.^ The Commissioners replied that they had nothing further to add as to their propositions, and that they had not thought it necessary to multiply words in repeating “ their deep sense of that horrid fact against the life of his royal father.”^ More than a fortnight elapsed without any response from the King, and both sets of Commissioners then pressed him for an immediate answer.® At last, on 29th May, the King declared himself in an identical answer ® addressed to both commissions. He promised to maintain the ecclesiastical and civil government of Scotland as settled by law and all Acts of Parliament consented to by his father, when present or repre¬ sented by authorized commissioners, and particularly the laws concerning the National Covenant, the Confession of Paith, 1 30 ^ ApTH 23 ^ May 10 May 3 The dates are so given in the Acts of Parliament, vol. vi., but those of the two last papers appear transposed. 3 7th May, N.s. Act. Pari. vi. 455. ' A-ct Pari. vi. 456. ^ May 9. 6 May — Act. Pari. vi. 456. ^ May^-^’ Baillie, iii. 515, 516. PROCEEDINGS OF THE COMMISSION 41 and Presbyterian government. But he qualified these con¬ cessions by observing that as regarded the League and Covenant in England and Ireland, it was not in his power to take any resolution without the consent of their respective Parliaments, and that he was willing to refer the consideration of this and all other English matters to a free Parliament. He further engaged to grant an indemnity to all, except persons guilty of the miirder of his father. The Commissioners of Parliament in their last paper ^ of 1st June expressed their dissatisfaction with this declaration of the King. They observed that it fell short of the concessions of his father at the Isle of Wight, who had promised to con¬ firm the League and Covenant in both kingdoms, and. to settle Presbytery and the Directory of Public Worship in England ; that the qualification of his assent to the Acts of Parliaments in which the King or his commissioners had been present would render invalid the Acts of the last eight years, and was contrary to the precedents of 1561 and 1640, in the former of which years. Queen Mary, and in the latter Charles i., had confirmed Acts of Parliaments in which they had not been represented. In a separate paper of the same date, they insisted on their first desire for the removal of Montrose, a desire not likely to be complied with, for the King’s declaration had, as we learn from an indorsation ^ on Clarendon’s copy in his own handwriting, been agreed to after counsel with Lord Montrose. The Commissioners of the Church presented ® on the following day, a longer and more vehement protest against the King’s declaration, especially that part of it in which he re¬ fused to recognise the Covenant in England. Charles returned a 1 May 21 ^ June 1 2 Clarendon, State Papers, iii. App. 93. 3 ^^23 BaUlie, iii. 517. June 2 42 LORD STAIR. curt answer to both commissions, in which he expressed him¬ self much dissatisfied with tliese last papers, but left the door for negotiation still open, while he closed the mouths of the Commissioners by stating his intention to send an express to Scotland. “ In the meantime,” he concludes, “ I expect and re¬ quire of all my subjects in Scotland such obedience as is due to me, their King, by the laws of God, of nations, and of that kingdom.” ^ The Commissioners immediately left without further reply. They landed in Scotland on the 11th of June and presented a full account of their proceedings to Parliament ^ and the Assembly ^ respectively, by whom they were thanked for their diligence. The failure of this mission might have been foreseen. It was scarcely possible that Charles should agree to such terms, while any other hope remained. On 15th March 1649, just before his departure for Holland, Stair had been named one of a large Commission, consisting chiefly of lawyers, with the Earl of Loudoun, then Lord Chan¬ cellor, at their head, which was appointed by Parhament for the revision of the law. The Act * appointing the Commission proceeded on the preamble, “ that it is most necessary that there be a constant, certain, and known model and frame of law according to equity and justice established by publick authority and published to all his Majesties lieges ; that divers of his Majesties progenitors by Acts of Parliament and commissions under the Great Seal of this kingdom, have given warrants, power, and commission to certain persons therein nominated, for revising and considering the Lawes and Acts of Parliament of the kingdome, as well printed as unprinted : the old book of law called Regiam Majestatem, and the customs and 1 Act. Pari. vi. 459. 2 14th June 1649. Parliament returns thanks to the commissioners. Act. Pari. vi. 451. ® 10th July 1649. The Assembly returns thanks to the commissioners, Baillie, iii. 521. * Act. Pari. vi. 432. LAW REVISION PRIOR TO 1649. 43 practices of the severall judicatories of the kingdome,as well civill as criminall, and for gathering and collecting general Lawes to have been perpetually and constantly established for adminis¬ tration of justice within the kingdome, which Commissions did never take the wished effect, partly by the over-great and im¬ portant affairs of the kingdome, and partly in respect of the respective incident troubles of the times.” The prior Com¬ missions here referred to were (1.) that of James l., by an Act of whose third Parliament in 1425 it was ordained “ that sex wise men and discreete of ilk ane of the three Estaites quhilk knawis the Lawes best sail be chosen (sen fraude and guile aucht to help na man) that sal see and examine the Buiks of Law, that is to say, Kegiam Majestatem and Quoniam Attachiamenta, and mend the Lawes that neids mende- ment;”^ (2.) that of James ill. in 1469, when a project for the “ King’s lawis, Kegiam Majestatem, acts, statutes, and uther bukes to be put in a volume and to be authorizit, and the laif to be destroyit,”* was referred to a Commission of four members of each Estate; (3.) that of John Lesley, Bishop of Ross, in 1566, by whose suggestion a Commission was issued by Queen hlary to certain learned, wise, and expert men who best knew the laws—the Chancellor and other Officers of State, Lords of Session and Advocates, “ to visie, sycht, and correct the lawis of this Eealme made be Her and Her maist nobill progenitouris be the avis of the three Estates in Parliament halden be thame beginnand at the buikis of the law called Kegiam Majestatem and Quoniam Attachiamenta and swa consequentlie following be progress of time until the dait of this Commission swa that na utheris hot the saidis lawis sychtit, mendit, and correctit be her saidis traist Counsalouris and Commisaris or ony sax of them conjunctlie, sal be be her privilege imprentit or have place faith or authoritie to be allegit and reheirsit afoir ony of Her Jugeis or Justices quhatsomever.” This Commission resulted ' 1425, c. 54. ^ Act. Part ii. 97. 44 LORD STAIR. in the printed edition of the Statutes from the commencement of James l/s reign to 1564, but did nothing with regard to the earlier laws. (4.) In 1574, under the Eegency of Morton, the Convention of Estates appointed the Chancellor, John Lord Glammis, WiUiam Baillie, Lord Provand Lord President of the Court of Session, William Lord Euthven, and other Lords of Session and Advocates, “ to visite the Bukis of the Law, Actes of Parliament, and Decisionis hefoir the Sessioun, and draw the form of the body of our lawis alsweill of that quhilk is alreddy statute as thay thingis that were meet and convenient to he statute,” “ quhairthrow there may he a certaine written law to all our Soverane Lordis, jugis, and ministeris of law to juge and decyde he.”^ The chief superintendence in this Commission was confided to Sir James Balfour of Pittendreich and Sir John Skene, Lord Clerk Eegister. It fell to the ground when Mor¬ ton quitted the Eegency, hut has left its traces in the Practicks of Balfour and the edition of the Early Laws puhhshed by Skene in 1607, who was again a member of a renewed Com¬ mission appointed by Parliament in 1592.^ (5.) In 1628 Charles l. granted a Commission, approved by Parliament in 1633, “to reid, recognosce, and consider the haill lawis, statutis, and Actes of Parhament, togider with the customes and con¬ suetudes of the said kingdome quhilk are and have beine ob- servit as lawis within the same either in the civile or criminal judicatoris,” “ to the effect the samyne may be their allowance, ratificatione, and approbatione, be registrated in the builds of Parliament and be maid notour, and known to the haill lieges.”^ Of the labours of this Commission all traces have disappeared. The Commission of which Stair was a member was granted in nearly the same terms with that of Charles i. Power was given 1 Thomson’s Preface to Act. Pari. 24 ; Hume of Godscroft’s History of House of Douglas, p. 358. 2 Thomson’s Preface, p. 26. ® Ihid. p. 29 ; Act. Pari. v. 46. STAIR COMMISSIONER FOR LA W REVISION. 45 to the Commissioners to consider the customs and practices both of civil and criminal courts, and for this purpose “ to order tiie production of all records and registers, together with the old registers of the book called Eegiam Majestatem in order that the Commissioners might compile a formal model or frame of a book of just and equitable lawis to be established and authorised by his Majestie and Estates of Parliament, and might abrogate any byegone Acts of Parliament which had fallen into desuetude or become superfluous or unprofitable.” The report of the Commission was to be considered and revised by Parliament, and established as a perpetual law in all time coming. Like its predecessors, this Commission proved abor¬ tive ; it probably never sat and certainly never reported. Yet we cannot refuse our admiration to these far-sighted, if pre¬ mature, schemes of the Scotch lawyers^ in the fifteenth and two following centuries. The troubles of the Commonwealth and of the Eestoration were not less adverse than those of the preceding period had been to the execution of a work which required an era of peace for its accomplishment. “ Silent leges inter arma.” The first half of the eighteenth century had its two re¬ bellions to suppress. The abolition of hereditary jurisdictions and the final settlement of orderly government and law in the outlying Celtic population was for it a difficult work well ^ Of a similar Commission in 1681, Foimtaiuhall (Decisions, i. 155) says : “ The Commission for revising the laws, Acts of Parliament, practiques, etc., may be useful if it takes effect and those conjoined agree or do not weary for want of salary to recompence their pains. It has been often on foot. See an old one, Act 54, 1425 ; Act 115, 1487; Item, the antepenult imprinted Act of the Parliament 1587 and the first imprinted Act 1633. But the most ample and comprehensive of them all is the printed 411 th Act of the Parliament held in 1649. This is in imitation of Justinian, who employed Trihonian and certain other lawyers to review the books of law in his time, and who compiled from them the Corpus Juris we now use; Tho’ some blame them for destroying the authors from whom they made their collection, yet it cannot be denied there are some of our old Acts scarce worth the reading ; but in these days the laws of other nations were but very little more polite.” 46 LORD STAIR. executed. But the century which succeeded the ’45 has no adequate excuse to oflfer for not undertaking the work of the arrangement of the law, though England and the confused chaos ^ of her laws, to whose indirect but powerful influence the Union subjected Scotland, must bear a portion of the blame. It stiU remains a problem, the solution of which depends on the statesmen and lawyers now living, whether the nineteenth century will not prove equally impotent, A conjecture has been hazarded that his appointment on this Commission first led Stair to think of his work on the law of Scotland, his chief title to fame; but of this there is no proof. It certainly, however, shows the high character, while only a lawyer of one year’s standing, he held in his profession, and must have induced him to survey in thought the historical progress of the law and the various unsuccessful attempts made for its improvement. The contemplation of past failures to an energetic mind is a spur to future exertions. What parlia¬ ments and commissions have attempted in vain has sometimes been the reward of patient and persevering individual effort. But if the thought of arranging the crude mass of Scottish law then entered the mind of Stair, it was thirty years before he brought it to maturity. In October^ of this year, Winram, one of the former Com¬ mission, who had become a judge of the Court of Session, and was thought by some of his countrymen to aspire to the part of kingmaker Monk afterwards played with more success, was ^ Yet let me not be supposed to disparage the gain to Scotland from the wealth of English precedents in commercial law and equity. But of its arrangement, one of its own most brilliant ornaments gives this account:— “ We seem making no progress whatever towards reducing to any intelligible shape the chaotic mass,—common law, equity law, crown law, statute law, countless reports, countless statutes, interminable treatises,—in which the law of England is by those who know where to look for it, and not always by them, to be found.”—(Chief-Justice Cockburn, quoted by Mr. Dudley Field in letter to Californian Law Commission.) ^ 11th October,—Balfour’s AnnaU, iii. 432. SECRETARY TO COMMISSION TO BREDA. 47 sent by the Parliament to Charles, who was then at Brussels, hut does not seem to have met him till December when Charles had removed to Jerseyd His fortunes were now at the lowest ebb. He had no money—not even bread, writes Winram," for himself and his servants. Ormonde’s Irish expedition had miscarried. Cromwell marched from victory to victoiy. The Spanish negotiations intrusted to Hyde made no progress. Scotland now seemed his only refuge, and in reply to the letters sent by Winram he wrote to the Paidiament^ recpiest- ing that Commissioners might be sent to treat wdth him at Breda on 15th March, and to the Moderator of the General Assembly entreating him to use his credit with the ministers “ to persuade them to a reasonable moderation.” ^ With the duplicity of his race he was writing to Montrose, then prepar¬ ing for an invasion of Scotland, almost at the same moment that the proposed treaty with the Scots was to be no impedi¬ ment to his proceedings.® In compliance with the request of Charles, the Estates,® on 8th March 1650, appointed the Earls of Cassilis and Lothian, Winram and Brodie, Sir John Smith and Alexander Jaffray, as a Commission to repair to tlie King at Breda, or any place where the Keformed religion was professed. To this Commission, which was almost identical with that of the preceding year. Stair was reappointed secretary. Like the former it was accompanied by a Commission from the Assembly consisting of Mr. John Living- 1 Letter, Sir J. Berkeley to Hyde, 3d December 1649. Clarendon [Slate Papers, ii. 499) mentions that Winram was tben expected at Jersey : “ I believe be will think he hath made a good voyage if he escape with a broken pate ; the gallants talked, before I came away, of throwing him over the wall.” ^ Letter, Winram to Mr. R. Douglas.—Baillie’s Letters, iii. 522. ^ Clarendon, State Papers, iii. App. 93. Letters from Charles to Com¬ mittee of Estates, 11th January, o.s. ^ Letter, 15tb February 1649, Charles ii. to Mr. R. Douglas.—Baillie’s Letters, App. iii. 525. ® Clarendon, State Papers, iii. App. 94. ® BaiUie’s Letters, iii. 524 48 LORD STAIR. stone, minister of Ancrum, wlio lias left a characteristic account of its proceedings, Mr. James Wood, Professor of Divinity at St. Andrews, and Mr. George Hutcheson, one of the ministers of Edinburgh, with the Earl of Cassilis and Brodie as ruling elders. The Commissioners were from the first divided into opposite camps. Cassilis, Brodie, and Jaffray, with the minis¬ ters sent by the Assembly, were against treating without the most stringent pledges by the King to the Covenant. Lothian, Winram, and Smith^ were ready to be content with more moderate terms—anxious at all hazards to have a king back as head to the government. Stair, it appears, leant to the latter party, and it is probable that his services on this occasion pro¬ cured him the favour of Charles^ when after the Eestoration it went hard with those who had accepted office under the Com¬ monwealth. The proceedings opened, as in the former mission, by a speech on the part of Cassilis for the Parliament and of Livingstone for the Kirk, and the latter complains that the ex¬ pressions he wished to use were toned down by the other Com¬ missioners to make his address “more savourie to the King.”^ The propositions submitted were: First, That Charles should subscribe the Covenant and establish Presbyterian government and worship ; Second, That he should acknowledge the authority of the preceding Sessions of Parliament, and ratify their Acts ; and Third, That he should put into execution all Acts against the toleration of Popery, and annul all con- ^ In a petition by Smith to Charles ii. after the Restoration, he says : “Your petitioner being in the year 1650 one of the Scots Commissioners that attended your Majesty at Breda, did stretch himself most faithfully in that station to do service to your Majesty, and advanced certain sums of money for the expense of your Majesty’s voyage to Scotland, and by public order provided and sent over arms and two vessels laden with oats for your Majesty’s army that then lay at Leith.”—Lauderdale MSS., British Museum, 13. 233; see Act. ParL vii. App. 82 and 85. 2 “The king took particular notice of him,” observes the author of An Impartial Account of some of the Transactions in Scotland .—See a letter from a Friend, Somers Tracts, Scott’s Ed. ii. p. 550. 3 Livingstone’s Life.—Wodrow Society, Sehct Lives, p. 172. STAIR RETURNS WITH CLOSED TREATY. 49 trary treaties.^ The Commissioners of the Kirk added ^ a pro¬ test against the commission granted to Montrose. After these papers were delivered, Lothian, Winram, and Smith went to Brussels and Antwerp, which caused over a week’s delay. The King’s reply ^ was a request to know if these were the whole proposals of the Commissioners; to which they answered,^ that these were the substance of all they were desired to tender. The contrast between the Courtiers and the Covenanters must have been striking to an observant eye. The former described ® the latter as “ brazen-faced rebels and barbarous brutes.” The Earl of Cassilis openly rebuked the Marquis of Newcastle for swearing, and the Presbyterian ministers were indignant that Charles amused himself, while the negotiations were in pro¬ gress, with “ balling and dancing till near day,” ® and not less that he still continued the use of the Service Book. Yet ne¬ cessity united these strange opposites. The King’s reply to the three propositions was a consent to the first and second, and to the third, with the exception of de¬ claring null all treaties with Papists. He promised to take the Covenant as soon as he arrived in Scotland. He demanded, however, at the same time, the full exercise of his royal autho¬ rity, the security of his person, the restoration of the Lords of the Engagement, a general reconciliation of parties, and the assistance of a Scotch army to recover England. The Commis¬ sioners substantially assented to these demands on condition Marche s, (^jarendon, State Papers, ii. App. p. 2. April 4. March 25. clarendon, State Papers, ii. App. p. 53. April 4. ® April 9. Clarendon, State Papers, ii. App. p. 54. * April ^ 14. Clarendon, State Papers, ii. App. p. 50. ^ See Letter by R. W. to William Edgeman, April 22, 1650; Clarendon, State Papers ; Macrae’s Calendar, p. 52. ® Livingstone’s Life, p. 174. 1 Clarendon, State Papers, ii. App. p. 58 (Note). April 27- D 50 LORD STAIR. that he accepted the Covenant; and on the 9th of May they addressed to him a formal invitation to come to Scotland. "With this paper and the King’s consent to the propositions, together forming the closed treaty, Stair was sent back to Scot¬ land, having been, in the opinion of Livingstone, “ a little too much forward for that same way of closing the treaty.” ^ The Commissioners of the Kirk continued to press Charles to a more decided declaration against Papacy and Prelacy, and remonstrated ^ with him, in strong language, on his con¬ tinuing the practice of kneeling at the Communion, “which could not fail to provoke the anger of God.” The Scotch Parliament was not satisfied with the treaty Stair brought home, and sent new instructions ^ to their Commissioners, re¬ quiring them to demand the King’s consent to their former propositions without qualification, that he should exclude from his court all persons falling within the first and second Classes of the Acts of 1646 and 1649,^ and keep out of Scotland the Duke of Hamilton and other specified persons. When these in¬ structions arrived in Holland the Commissioners and the King were on the eve of embarkation for Scotland,® but they do not appear to have communicated the new form of the demands of Parliament till they had set sail. While at anchor off Heligoland,® on board the ship “ Schiedam,” these were pre¬ sented to Charles, who gave a reluctant assent to them; but his subscription to the Covenant was still deferred, and only when at anchor at the mouth of the Spey, on Sabbath morning 1 Livingstone’s Life, p. 177. ^ See these Papers—Clarendon, State Papers, ii. App. pp. 62, 63. 3 lath May, o.s. Clarendon, State Papers, ii. App. p. 59. ^ These were —“ The Act aneiit the Classes and Degrees of Delinquents not to be processed to death,” 8th January 1646, Act. Pari. vi. 203 ; “ The Act of Classes for purging the Judicatories and other places of publick Trust,” 23d January 1649, Act. Pari. vi. 352. ® Livingstone’s Life, p. 180 et seq. ® Clarendon, State Papers, ii. App. p. 63. 11th June, o.s. See Macrae’s Calendar, p. 64, as to mistake in date. CHARLES II. A COVENANTED KINO. 51 the 23d of June, after a sermon preached by Livingstone,^ the last step was taken, Charles swore to the Covenant, and landed, to use an expression of the times, a Covenanted king. Neither the contrition afterwards expressed by Living¬ stone, Brodie,^ and Jaffray, for their share in the treaty, nor the scorching contempt of Cromwell, can be deemed mis¬ applied to this transaction. “ For the outward part of swear¬ ing and subscriving the Covenant,” writes the minister of Ancrum, “the King performed anything that coidd have been required; but it seems to have been the guilt, not of the Com¬ missioners only, but of the whole kingdom, of the State and of the Church, who knew the terms whereupon the State was to admit him to his government, yet without any evidence of ane re all change in his heart, and without forsaking former prin¬ ciples, counsells, and company.” “ We did sinfully,” confesses Jaffray, “ both entangle and engage the nation and ourselves and that poor young prince, to whom we were sent, making him sign and swear a Covenant which we knew from clear and demonstrable reasons that he hated in his heart.” ^ “ But that,” wrote Cromwell to David Lesley, “ under the pretence of the Covenant, mistaken and wrested from the most native intent and equity thereof, a King should be taken in by you to be imposed upon us; and this called ‘ the cause of God and the kingdom,’ and this done upon ‘ the satisfaction of God’s people in both nations,’ as is alleged, together with a dis¬ owning of Malignants; although he who is the head of them, in whom all their hope and comfort lies, be received, wdro at this very instant hath a Popish army fighting for and under him in Ireland; hath Prince Rupert, a man who hath had his 1 Livingstone’s Lifo, p. 182 : “ It was laid on me to preach the next Sabbath, when he should swear it (i.e. the Covenant), and to read the National Covenant and the Solemn League and Covenant, and to take his oath.”—See also Livingstone’s Letter to R. Douglas, p. 259. ^ See Brodie’s Diary, p. 189. ^ Jaffray’s Diary, p. 55. 52 LORD STAIR. liaud deep in tlie blood of many innocent men of England, now in the head of onr ships stolen from us upon a Malignant ac¬ count ; hath the French ships, daily making depredations on our coasts, and strong combinations by the Malignants in England, to raise armies in our bowels, by virtue of his commissions, who hath of late issued out very many to that purpose. How the interest you pretend you have received him upon, and the hlalignant interests in their ends and consequences centering in this man can be secured, we cannot discern.”^ On the 20th of May Stair was appointed by the Parlia¬ ment, along with Sir Arthur Erskine of Scotscraig, to meet the the King and Commissioners at their landing,^ and probably accompanied him in his progress to Falkland. Before leaving Edinburgh he had been a witness of the gallant end of the chequered life of Montrose,^ who was executed on the 21st, and carried the news of it to Charles, a tale which must have raised a pang, if sorrow were possible in a heartless breast.^ Fortunately for himself. Stair had abandoned the military pro¬ fession, or he might have shared in the disaster of Dunbar (where his colleague Winram met his death), and the final cata¬ strophe of Worcester. We do not again find any trace of Stair till 1654, but his time was doubtless occupied in the interval in the practice of his profession and in study. ^ Cromwell to David Lesley, 14tli Avgust 1650. From the Camp at Pentland Hills. ^ Balfour’s Annals, iv. 18. 3 “He got some resolution after lie came here how to go out of this world,” writes Argyle to Lord Lothian, “but nothing at all howto enter another, not so much as once troubling himself to pray at all upon the scaffold, nor saying anything on it that he had not repeated many times when the ministers were with him. For what may concern the public I leave it to the public papers and Mr. James Dalryrnple's relation.” Note to Kirkton’s History, p. 124, quoted by Burton, vi. 260. ^ “He had an appearance of gentleness in his outward deportment. But he seemed to have no bowels, no tenderness in his nature, and in the end of his life he became cruel”—Burnet’s History, i. p. 612. INTIMACY BETWEEN HOLLAND AND SCOTLAND. 53 These two visits to Holland form an important epoch in his life. That small republic, ^ reared on land won from the sea and the tyrants of Spain, was then earning the honourable character which it shares with Britain of the exile’s home. “ It was a maxim of long standing amongst us,” said their ambassador Birel to Charles il., “ not to inquire upon what account strangers came to live in our country, but to receive them all unless they had been concerned in conspiracies against the persons of princes.”^ The Pilgrim Fathers or the Eoyalist refugees, Frencli Protestants and German Catholics, adherents of Prelacy, Presbytery, and Independency, found an equal wel¬ come on its hospitable soil.^ Stair himself, in his adversity, was to claim and receive that welcome for which at this time, un¬ conscious of the future, he was making preparations, by learning to know the people, their customs, and perhaps their language. Between the Scotch and the Dutch there had been, since the Eeformation, a strong sympathy founded on common religious ideas and reciprocity of trade. At Middleburgh and Campvere'^ there were Scotch settlements with peculiar privileges. At ^ “Ad Batavi® oram ex piscatoriis aliquot navigiis nova repente Respublica extulerit caput: qu® armis indies pr®valida superiorem pati nee terra velit nec mari jam possit; qu® magnis per oceanum classibus ad remotissimos terrarum tractus colonias invenerit qu® statis apud Principes legationibus mutuisque fcederibus non minorem se Regibns ferens novum sibi in Europa principatum asseruerit.” This is the language of the Jesuit Strada, de Bello Belijko, liber primus. ^ Burnet’s History of His Own Times, i. 81. The rule was more strictly observed than the exception. “I saw,” observes Burnet himself, “much peace and quiet in Holland, notwithstanding the diversity of opinions amongst them, which was occasioned by the gentleness of the Government, and the toleration that made all people easy and liappy.”—i. 207. ^ As to the British in Holland in 1G88, Macaulay says, “ the Hague was crowded with British adventurers of all the various ])arties which the tyranny of James had united in a strange coalition, old Royalists, who had shed their blood for the throne, old agitators of the army of the Parliament, Tories who had been persecuted in the days of the Exclusion Bill, Whigs who had fled to the Continent for their share in the Eye House Plot.”—ii. 453. '* See Erskine’s Institutes, i. 4. 34, as to the conservator of the Scotch privileges at Campvere, and the Acts 1503, c. 81, 82 ; 1579, c. 96, 97. 54 LORD STAIR. Ilotterdam, Amsterdam, Dort, Leyden, the Hague, and many other places, there were Scotch congregations; the United Provinces had a Scotch brigade of three regiments in their service;^ Scotch students frequented the Universities of Leyden, Utrecht, and Franeker, where, as in the French Uni¬ versities of the 16 th century and the German of the 19 th, the Civil law of Eome had then its best interpreters. Grotius, the greatest name amongst Dutch, perhaps amongst modern European jurists, had died four years before Stair’s first visit, but Paul Voet,^ the father of the more famous John Voet,^ Vinnius,^ and Matthseus were then in their prime. The Dutch school of jurisprudence was contrasted for its elegance® with the German, and was reckoned the successor of the French in the combination of classical learning with legal talent. Salmasius,® one of the best examples of this com¬ bination, was engaged during Stair’s visits in his Defemio Regia pro Carolo Primo, to which Milton replied in his Defensio pro Populo Anglicano, which cost the poet^ his eyesight, and is said, though with doubtful truth, to have shortened the life 1 Burton’s History, L p. 14. 2 Paul Voet, son of the theologian Gisbert Voet, born 1619, died 1667, was a Professor at Utrecht. His best-known work, DeStatutis et eorum Con- cursu, is still referred to occasionally in our Courts on questions of inter¬ national law. 3 John Voet, his son, a Professor at Leyden, born 1647, died 1714, was the author of the somewhat verbose but comprehensive work on the Pandects, from which several generations of Scotch lawyers borrowed their quotations from the Homan law. ^ Vinnius, born 1588, died 1657, published in 1642, at Leyden, his Com- Tiientaries on the Institutes. ® Some good judges in the present day regard the best Dutch writers as better masters of style than the Germans. Born 1588 at Saumur, studied at Heidelberg, an Advocate at Dijon, and afterwards Professor at Leyden ; died 1658. ^ In his second sonnet to Cyriac Skinner, Milton says, alluding to his own blindness— “ What supports me, dost thou ask ? The conscience, Friend, to have lost them overplied In liberty’s defence—my noble task.” DUTCH JURISPRUDENCE. 55 of his adversary. He was visited at Leyden, where he was Professor, by Stair, who must then probably have made the acquaintance of some of the other leaders of the Dutch juris¬ prudence. However this may be, his Institutions show he carefully studied their writings,^ and was imbued with their liberal and philosophical spirit, which transmuted the letter of the Koman law, and adapted it to the advancing civilisation and extending commerce of the age. Thus the modern European Jus Gcntmm flowed from Holland by a direct channel into the law of Scotland, and helped, as in the preceding centuries the Canon law had done, to preserve its equitable character, and to make it more cosmopolitan and less insular than that of England. 1 Of the Dutch jurists Stair quotes hy name only Grotius and Gudelinus, hut that frequently. The references to Grotius are the following:—lust, i. 1. 17, Law, a rational discipline ; i. 2. 5, Liberty only limited by the rights of others ; i 5. 2, Distinction between pupillarity and minority; i. 7. 2, Obligations arising from rights of property are by tacit consent, an opinion which Stair controverts, alleging that they arise from the will of God; i. 8. 31, Recompence, as to which there is a similar divergence of opinion ; i. 10. 31, Necessity of accejitance to make a promise binding; i. 10. 13, Permutative contracts and enorm lesion ; ii. 1. 39, Appropri.ation by accession; iv. 40. 23, Lying to enemies lawful, which Stair denies. Gudelinus, Professor at Louvain, is mentioned in the following passages:— i. 4. 12, Jus mariti Gudelinus sheweth the same to be the condition of the Netherlands, in which they do almost in everything agree with our customs ; i. 5. 12, Obligations between parents and children ; i. 6. 3, Obligations between tutors and j)upils ; i. 10. 7, Every paction produces action, contrary to the Roman law rule, “ ex nudo pacto non oritur actio ; ” ii. 4. 18, New in¬ vestiture on change of vassal. CHAPTEE IV. 1650-1661. stair advocate and judge during the Commonwealth—Sketch of influence of Crom¬ well’s government in Scotland—Stair and other advocates refuse to take the Tender—The Tender laid aside—Stair one of Committee for restoration of the Outer House—Death of Sir James Learmonth, Lord Balcomie, one of the Com¬ missioners for the administration of justice—Stair appointed his successor by Monk—His appointment confirmed by Cromwell—His intercourse with the English judges gave Mm an opportunity of learning English law—Builds the house called General’s Entry—His intimacy with Monk, who consults with him before he marches to England—Visits London on accession of Charles ii. —Appointed one of the Judges of Court of Session in new nomination—His wife’s estate of Carscreoch, in Galloway, his country residence. The victory of Worcester, Cromwell’s “ crowcing mercy,” on 3d September 1651, the anniversary of Dunbar, settled the Eepublic as the form of government for England ; and the storming of Dundee by Monk, two days before Worcester,’- had the same result in Scotland, though that general was not idle during the two next years, and had to be sent back in 1654 to complete the work of subjugation.^ For the latter country at least the new government was one of force,® but it ^ Carlyle’s Cromwell, ii. 298. 2 “ There rose afterwards rebellion in the Highlands—rebellion of Glen- caim, rebellion of Middleton, with much moss-trooping and horse-stealing; but Monk, who had now again command there, by energy a®d vigilance, by patience, punctuality, and slow, methodic strength, put it down, and kept it down. A taciturn man, speaks little, thinks more or less, does whatever is doable here or elsewhere.”—Carlyle’s Cromwell, ii. 299. 3 May 1652. “ Letters that the declaration of the Parliament of England for the union of Scotland with England, and the sending of members to the Parliament of England, was proclaimed with great solemnity at Edinburgh Cross ; hut the Scots showed no rejoicing at it.” —Whitelocke’s Memorials, p. 532. “So remarkable was our loyalty,” writes Sir George Mackenzie, “ in the world and amongst strangers, that his Majesty was always called SCOTLAND UNDER THE COMMONWEALTH. 57 was force in the main guided by wisdom. In all departments of public affairs there was vigour and the spirit of reform. “ There was good justice done,” says Burnet, “ and vice was suppressed and punished, so that we always reckon those eight years of usurpation a time of great peace and prosperity.” “ Cromwell,” observes Sir Walter Scott, with characteristic can¬ dour, “ certainly did much to civiUze Scotland.” ^ An incor¬ porating union between the two countries was devised, though not fully perfected. The Parliament of Scotland ceased to meet, and during the short time during which Cromwell tolerated a Parliament in England, Scotland was nominally represented in it by thirty members.* A council, which sat at Dalkeith, presided over by Lord Broghill, formed the executive ; but all matters of importance were referred to Cromwell himself.^ Free trade and an improved Postal system * between the two countries were established. The Universities were visited,® King of Scots ; and it was believed and presumed, in all places where our natives travelled, whether in England or beyond sea, that a Scot was still a Royalist.”— History, p. 22. 1 Notes to Dry den’s Heroic Stanzas —the passage continues : “ Some of his benefits were intentionally conferred, others flowed indirectly from the measures he adopted for the consolidation of his own authority. The Eng¬ lish judges whom he appointed introduced into the administration of justice a purity and vigour with which Scotland had been hitherto unacquainted. By the impoverishment, exile, and annihilation of the principal baronial families, the chain of feudal bondage was lightened upon the peasantry, and the pay of 18,000 men, levied to maintain the eonstituted authorities, enriched the lower orders amongst whom it was spent. The English soldiers also intro¬ duced into Scotland some of the arts of a more civilized country.” So Bos - weU writes in the Tour to the Hebrides, p. 85 : “ Dr. Johnson laughed to hear that Cromwell’s soldiers taught the Aberdeen people to make shoes and stockings and to plant cabbages.” ^ Ordinance of the Protector, 1654. ®Lord Broghill’s Council was not appointed till 1655, but there had been a prior Commission sent by the English Parliament in 1652, of the proceed¬ ings of which Lament gives a concise account in his Diary, p. 37. Amongst these he mentions that “they discharged aU judicatories, viz.. Lords of Session and Counsell, Shyrra Courts and Commissary Courts,” and that “they established a judicatorie of Sequestration at Leith, viz., Mr. SaltonstaU and Mr. Disbourg.” * Ordinance of the Protector, 17th December 1655; quoted by Burton, vii. 320. 6 Lament’s Diary, Sept. 1652, p. 47. 58 LORD STAIR. aud grauts were given tliem from the Church revenues. The General Assembly of the Church, Avhich had become far too powerful to co-exist with a settled civil government, was dissolved.^ The Church judicatories were reorganized, and the excesses of the clergy kept in check by the strict enforce¬ ment of the jurisdiction of the Civil Court as to the recovery of stipends. The system of Patronage, which had been re¬ stored to the congregations in 1G49, and caused hot disputes between the parties of the Eesolutioners and Eemonstrants, was altered and intrusted to a Commission of forty ministers and twenty elders.^ In no department was the reform more radical than in the administration of justice. The Court of Session had never been popular.® Its judges were accused, with good cause, of arbitrariness, partiality, and bribery, and crimes of deeper dye had in some cases disgraced the judicial office. A separate Supreme Court for Scotland was still retained, but its constitu¬ tion and procedure were completely changed. The Court of Session sat for the last time on 28th February 1650, and on 18th May 1652 Commissioners for the administration of jus¬ tice were appointed under the Great Seal of the Commonwealth. Instead of fifteen Judges or Ordinary Lords, including the President, the number of which the Court had consisted since its institution in 1532 by James V. on the model of the Parlia¬ ment of Paris, seven Judges were appointed, four of whom 1 Baillie’s Letters, iii. 225 ; Lamont’s Diary, p. 57. ^ Lamont’s Diary, p. 92. 3 Laing, History of Scotland, i. 446 and 522, where he quotes Buchanan and Johnston. The former writing in 1582 says, “Nam cum in Scotia nuUse pene sint leges prseter conventuum decreta, eaque plera non in perpetuum sed in tempus facta, judicesque quod in se est lationem legum impediant omnium civium bona quindecim hominum arbitrio sunt commissa quihus et perpetua est potestas et imperium plane tyrannicum quippe quorum arbitria sola sunt pro legibus.”—Buchanan. Hist., Lib. xiv. 273. The latter writes in 1597, “ Hac tempestate totus ordo judicum paucorum improbitate et audacia infamatus. Inveteravit turn oi^inio et omnium sermone percrehuit pecuniosum hominem neminem potuisse causa cadere.”—Johnston. Hist., p. 231. CROMWELL'S JUDIGLAL REFORMS. 59 were English lawyers.^ There was no President, each Judge taking the chair weekly in rotation. The Extraordinary Lords,^ whose votes had sustained the influence of the Crown and the Nobility, disappeared. The Outer House, in which the Judges sat singly by turns, was suppressed, and all causes were heard at once by the Court itself. Feudal tenure and its concomitant, the hereditary jurisdictions, were abolished,® and regular circuits of the Supreme Judges 1 The four English were Moseley, March, Owen, and Smyth, and their Scotch colleagues. Sir John Hope of CraighaU, son of Sir Thomas Hope, the Lord Advocate of Charles i.. Colonel WiUiam Lockhart, brother of Sir George Lockhart, President of the Court of Session imder Charles ii., and John Swinton of Swinton. 2 The existence of these Extraordinary Lords was one of the marks of the descent of the Court of Session from the Domini Auditores, a Committee of Parliament, and their position may be compared to that of the lay lords of the English House of Lords, who, down to the time of O’Connell’s trial, used to sit and sometimes vote in the Court of Appeal. They were reintroduced at the Restoration, but abolished in 1723, by 10 Geo. i. c. 19. ^ “ That all and every the heritors and others the persons aforesaid and heirs are and shall be for ever hereafter freed and discharged of and from all suits and appearing at or in any of their lords’ or superiors’ Courts of Jus- ticiary, regality, stewartry, barony, baUiary, heritable sheriffships, heritable admiralty, and all which, together with aU other offices heritable and for life, are hereby abobshed and taken away ; and that all and every the per¬ sons aforesaid and their heirs are and shall be for ever hereafter freed and discharged of and from aU their military service and personal attendance before any of their lords or superiors in expeditions or in travels, and of all casualties of ward lands formerly held of the king and other superiors, and of the marriage, single and double avail thereof, non-entries, compositions for entries, and of all rights and casualties payable, if they be demanded only or upon the committing of any clause irritant, and that the said heri¬ tors and persons aforesaid be now and from henceforth construed, reputed, adjudged, and declared free and acquitted thereof.”—Ordinance of the Pro¬ tector quoted by Burton, vi. 318, from Bruce’s Report on the Union, p. 59. The former vassals were to hold “ by and under such yearly rents, boons, and annual services as are mentioned and due by any deeds, patents, charters, or infeoffments now in being of the respective lands therein ex- jiressed or by virtue thereof enjoyed, without rendering, doing, or perform¬ ing any other duty, vassalage, or command whatsoever.” More than two centuries have passed, and every one is now satisfied of the necessity of this reform, but the statesmen and lawyers who have Uved in the interval have not yet been able to place in the Statute-book what Cromwell accomplished by this single ordinance. 60 LORD STAIR. held/ The use of Latin in legal writings was done away/ New instructions were issued for Justices of the Peace/ an ^ “ September 1652. That the new Judges made and sent from England went the circuites in Scotland.”—Whitelocke’s Memorials, p. 543. ^ “They (j.e. the English Judges) discharged any Latin charter to be written hereafter or any Latin words to be in bonds or obligations, bot everything to be in English.”—Lament’s Diary, 42. See as to changes made in writs, Nicol’s Diary, 94, 96. So also in England an Act was passed in 1650 “ for turning all books of law into English, and for all pro¬ cesses and proceedings in Courts of law to be in English.”—Whitelocke’s Memorials, p. 477. There had not been wanting Scotch reformers of an earlier age who had struggled for the introduction of the vulgar tongue in legal proceedings. Thus Sir David Lyndsay writes in his Dialog betwix Ex¬ perience and ane Courteour :— “ I wald sum Prince of gret discretioun In vulgare language planelye gart translate The needful Lawis of this Regioun ; Than wald thare nocht be half so gret debait Amang us peple of the law estait Geve every man the verytie did knaw We nedit nocht to treit tbir Men of law. Tyll do our nychtbour wrang we wald be war Gyf we did feir the lawis punysment Thare wald nocht be sic brawling at the bar Nor men of law loup to sic royall rent And ilk man do as he wald be done to The Jugis wald get lytill thing to do. Lat doctores wrytt thaire curious questionis And argumentis sawin full of sophistrye Thare Logick and thare heych opinionis Thare dirk jugementis of Astronomye Thare Medecyne and thare Philosopbye Lat Poetis schaw thare glorious ingyne As ever thay pleis in Greek or in Latyne Bot let us haif the Bukis necessare To commoun weill and our salvatioun Justlye translatit in our toung vulgaire.” ® The Declaration and Order of His Highness’s Council in Scotland requiring all Persons to give due obedience to the Justices of Peace in execution of the powers and authorities given them by the instructions hereunto annexed issued in 1655, are printed in Hutcheson’s Justice of the Peace, App. i. No. 8. In the previous year a new jurisdiction of Courts Baron had been created. “ 1654, May. —Ther was a paper emitted by the forsaid Protector and his Counsel! for erecting Courts Baron in Scot- THE ADVOCATES REFUSE THE TENDER. 61 office introduced by James vi. from England for the administra¬ tion of minor cases of criminal and civil justice, but which before this time had not taken firm root in Scotland. A stringent Act was passed for the suppression of theft upon the Borders of England and Scotland, the discovery of high¬ waymen and other felons.^ The design of these changes was obviously to hasten that assimilation of the laws of the two countries which was neces¬ sary to make the Union complete. But due allowance had not been made for the conservative force of legal institutions and the power of resistance possessed by the legal corporation. In 1654 all the most eminent advocates, including Stair, refused the Tender or Oath of Allegiance to the Commonwealth and Abjuration of Eoyalty, and withdrew from the bar. A tradition has been often repeated that a consequence of this was the introduction of the voluminous written pleadings, necessary, it was said, to instruct the English Judges ignorant of Scotch law, which down to a very recent period were an evil characteristic of Scotch procedure,^ these being drawn at home by the advocates who had seceded, and signed by their less able and more complying brethren. Probably this is an error. Long written papers, both in criminal and civil suits, were cer¬ tainly in use before this period, and the few reported decisions of the English Judges are creditable specimens of reasoning land to be holden every three weecks, which Court sould have powir, order, and jurisdiction of all contracts, debts, promises, and trespasses whatsoever arising within ther oune precincts and bounds, provided that the meates in demande exceide not the value of fourtie sh. sterling.”—Lament’s Diary, 71. What the constitution of these Courts precisely was is obscure, but it appears improbable that they had anything but the name in common with the old Courts of barons and freeholders, as to which see Stair, Inst. ii. 3. 63. ^ Adv. Libr. H. 33, c. 2 It has been remarked with reference to this that Scotch lawyers wrote all they spoke, and printed all they wrote. A defender of the old system of written pleadings might retaliate that legal learning is not so thorough or exact since they have gone into disuse, and that much which is now spoken no one would venture to write, still less to print. 62 LORD STAIR. and knowledge of the law. The uprightness of these Judges was universally acknowledged,^ and was the occasion of the shameless saying, attributed to one of their successors after the Eestoration, who, being reproached with the difference between their administration of justice and that of the Scotch Judges, replied, “ De’il thank them, a wheen kinless loons.” ^ This secession of the advocates, indeed, did not last sufficiently long to have had much influence on legal proceedings. The assist¬ ance of the bar was found indispensable as on a subsequent occasion, when Stair took a more prominent part on the oppo¬ site side, and the Tender had to be laid aside.® Soon after their return to practice the advocates appointed a committee of four, of whom Stair was one, to declare to the Judges that they were in favour of the restoration of the ancient form of the Outer House,^ and in consequence of these remonstrances that House was re-established® in 1655, and has existed ever since. It is curious that the abolition of the Outer House, a cardinal point in Cromwell’s changes, is con¬ sidered by some persons ® of authority at the present day as now necessary for the reform of the Court. 1 “ And to speik trueth the Englisches wer more indulgent and mercifill to the Scottis nor wer the Scottis to thair ain countrymen and nychtbouris as wes too evident, and thair justice exceided the Scots in many things as wes reputed.”—Nicol’s Diary, 104. 2 This saying has been attributed both to President Gilmour {Court of Session Garland, Ed. 1839, p. 4), and to Dalrymple, President of the Court of Session (Godwin’s History of the Commonwealth, iii. 314). Whether Stair or his son Hugh, who succeeded him as President, is intended does not appear. Both accounts are of course purely traditional. Godwin says he got his “ from a Scotch gentleman whom it would do me honour to name. But I refrain from motives of delicacy.” 3 Stair’s Apology, p. 4. * Forbes’s Preface, p. 31. ® “ When a good correspondence betwixt the bench and the bar was begun, the Outer House was restored upon an address to that end made to the Commissioners by the Faculty of Advocates, 4th July 1655.”—Forbes’s Preface, p. 16. ® Lord Justice-Clerk MoncreifF.—Scotch Law Commission, Fourth Report, p. 45. Sir Roundell Palmer, ibidem. APPOINTED JUDGE BY MONK. 63 On 26th June 1657 Sir James Learmonth, Lord Balcomie/ who had been appointed little more than eighteen months pre¬ viously one of the Commissioners for the administration of justice owing to the pressure of business in the Outer House, died on the Bench, an event which the superstition of the times deemed a national judgment.^ It had been already in contemplation to appoint a new judge, and Monk h^d, three days before Balcomie’s death, pressed the claims of Stair in the following letter to the Protector : “ May it please your Highnesse, having received this inclosed letter from my Lord Brodie in answer to your Ilighnesse’s offer to him to bee a judge, and perceiving he is not free to it, I make hold to mention to your Highnesse one Mr. James Dalrynvple as a person fit to he a judge, being a very honest man, a good laioyer, and one of con¬ siderable estate. There is scarce a Scotchman or Englishman who hath bin much in Scotland butt knows him, of whom your Highnesse may inquire further concerning him.”^ Balcomie’s death and the state of business in the Court rendered it neces¬ sary that a siiccessor should be at once aj)pointed, and accord¬ ingly, on the afternoon of the day of his death, the Council of Scotland filled the vacancy by raising Stair to the bench, and Monk wrote to Cromwell informing him of what had been 1 “ Upon the death of Lord Balcomie, the Council of State, finding the Court of Session weak and wanting one of their quorum hy reason of the absence of some attending the Parliament of England in London, urged Mr. James Dalrymple to take his place, and promised to procure him a patent for bruiking of the place ad vitam aut culpam.”~MS. Diary in Wodrow’s Collec¬ tion, Advocates’ Library. 2 “A man verie painfull in his office, and willing to despatch business, in this sad time depairted this lyfe even in a moment sitting upon the bench in the Parliament House about nyne in the cloke in the morning to the great grieff of much people. His corps was honourahlie huryit in the Church kirkyeard in Edinburgh with such numbers of people as was admirable, and hard murners befoir and following the bier above fyve hundred personis. His removal fra that bench teas esteemed to he a national judgment." —Nicol’s Diary, p. 198. 3 Thurloe, Slate Papers, vi. 367. 64 LORD STAIR. done : “ May it please your Highnesse I am appointed by your Highnesse Council here to acquaint your Highnesse that some few weeks since the Lord Southhall, who was one of your Highnesse’s Commissioners for the administration of justice in Scotland, having departed this life, and it having pleased God now to take away from us the Lord Balchomie, another of the said Commissioners, who died this forenoone in the house of the Session of the said Commissioners, whereby the number of the said Commissioners is become so few that here are but foure of them now upon the place, which is the least number that can, by their Commissions, act in the Inner House ; and the constitution of that Judicature being such, that in an Outer House, which is still in use for judging of matters not of so great moment or intricacy as that either party concerned would insist upon having the judgment of the Inner House on them, one of the judges would determine and adjudge in many civil causes which did spare much paines to the whole judicature in deciding of causes of lesser importance, and with¬ out which proceedings would be too slow. But the death of Lord Balchomie rendering now the keeping of the Inner and Outer House (which is the whole judicature) together, the quorum now left here being barely competent for the Inner House, and it being the time of the Sessions, which continue but for the months of June and July, the next Session not beginning till the 1st of November, and great numbers of people being attending the despatch of their causes there de¬ pending, your Highnesse Council have found themselves in a strait, because they apprehended that as it is necessary for the carrying on of justice to the people, another judge should be appointed who is very able in the laws and practice of pro¬ ceedings here to keep the Outer House, whereas the Lord Bal¬ chomie did frequently sit, having been one of the ablest for it: so they would be very unwilling to place any one in such a trust without your Highnesse’ express order and appoint- CROMWELL CONFLRMS HLS APPOINTMENT. C5 ment, if the administration of justice, which they are by your Highnesse appointed to see duly administered, could be other¬ wise effectually proceeded in without intermission ; yet be¬ lieving it to be your Highnesse intention that they should supply such a present exigency in a time so pressing, they bethought and have piteht %ipon a person of eminent abilities, Mr. James Dalrymple, an advocate of whose qualifications and good affections they have ample satisfaction, to be ane of the said Commissioners for administration of justice, at the same salary which the Lord Balchomy had, being three hundred pounds per annum, according to the establishment of the Scotch judges, of which choice they humbly crave leave to desire your Highnesse approbation.” ^ Stair was accordingly admitted to the bench on 1st July, and his appointment was confirmed by Cromwell on the 26th of the same month.^ Wlien afterwards assailed for accepting office under the usurper. Stair defended himself, lawyer-like, with a distinction which will scarcely satisfy a sensitive conscience, though it was adopted in similar circumstances by Sir Matthew Hale.^ “ I was made a judge, supposing I would be as ac¬ ceptable as any, yet I did not embrace it without the approba¬ tion of the most eminent of our ministers who were then alive, who did wisely and justly distinguish between the commissions granted by usurpers, which did relate only to the people, and were no less necessary than if they had prohibited baking or brewing but by their warrant, and between those which relate to councils for establishing the usurped power or burdening the people.” His appointment afforded a fair shaft to the satirist,— ' Thurloe, State Papers, vi. 372. ^ See also Monk to Thurloe, 14th July 1657, “ I understand by yours that Mr. Dalrymple’s commission will be speedily sent down.”—Thurloe, State Papers, vi. 402. ® Robert Burnet of Crimond, father of the Bishop, on the other hand, had refused to serve under Cromwell.—See Burnet’s IJistori/, i. 137. Brodie, the Commissioner to Holland, also declined. 66 LORD STAIR. “Jingo, the taws ! Presto, begon, a mace ! First Nol’s just power gave liim a Regent’s place,’’ ^ tvliicli did not require to be pointed with the venom of a falsehood,— “ He has a turning rota yett unworne Can his alleadgeance to the Tender turn ; ” for he does not appear to have been required to accept the Tender, taking only the oath De Fideli Administratione Officii.^ Stair is said to have hesitated before accepting the ofbce of judge, not only because of scruples as to serving under the Pro¬ tector, but also because the moderate stipend of £300 a year was less than his private practice at the bar. The Eeports of the Decisions of the English Judges, which commence on 23d November 1655, show that this practice had become con¬ siderable, although less than that of Gilmour and the younger Nicolson. The last case in which he is mentioned as plead¬ ing was on 16th June 1657.^ It was probably an effect of Stair’s intercourse with the English judges at the bar and on the bench that his “ Institu¬ tions ” in many places exhibit an acquaintance with the Eng¬ lish law which would be creditable to a Scotch lawyer of the present day, and must have been rare in the lawyers of his own time. His tenure of office at this period, however, was very short, for during the two years which intervened between Cromwell’s death and the Eestoration the Courts were sliut,^ and a new Commission, in which Stair was included, issued in March 1660, did not take effect, as it was not known in whose name to direct their letters, some being for a king, others for the keepers of the liberties of England.® ^ Maiciment’s Scotch Pasquih, p. 180. ^ Forbes’s Preface, p. 31. “ Decisions of the English Judges during the Usurpation. Edinburgb, 1772. ^ Mackenzie’s History., j). 21. ® March 16G0. “The Counsell of Estait now sittand in the intervall be- twix the twa Parliamentis .... appoyntit the personis following to be .Judges for administratioun of justice to the pepill in Scotland, in causes criminal and civill, to witt, Edward Moysilie, Henrie Goodzear, ms INTIMACY WITH MONK. 07 About or shortly before this time Stair built in Edinburgh a house situated in a “ court ” now called General’s Entry, which may still be seen near the junction of Potterrow and Eristo Street. This became his town residence, and lie entertained in it General Monk, from whom the Entry perhaps derived its name. It was afterwards inhabited by his grandson John, second Earl of Stair, and has acquired a poetical association as the lodging of the Clarinda of Burns. In Alison Square, a few paces off, Thomas Campbell composed the “ Pleasures of Hope.” ^ General’s Entry is now one of those despised tenements of the old town which will probably soon disappear in the course of its improvement. IMonk is said to have freqiiently sought the advice of Stair during his residence in Scotland. The terms of his letters to Cromwell certainly show the confidence he reposed in him The day^ before that on which he commenced his march for England, the 18th November 1G59, they had a meeting, when Stair recommended him to call a full and free Parliament.® He Crook, junior, Jolinne Henlie, Esquyris, for tlie English natioun ; Sir Johnne Wems, Sir Janies Hope, James Dalrymple, Johnne Scongal of Humhie, James Robertoun, and David Falconer, knychtes and esquires, for the Seottis natioun. The quorum of the saidis judges to be fyve, and that the four Inglische judges and four of the Seottis natioun be jiarticularlie assigned to go zeirlie in Circuit Courts in Scotland. Bot thir ordoris tuik not effect, not knowing in qidiois name and authoritie to direct thair warrandis and letters ; sum of the pepill being for a king, utheris for the keiparis of the liberty of England, as was in use of befoir quhen Oliver and his line assumed the power and authoritie to thamselfhs, and usurped the Crown.”— Nicol’s Diary, p. 278. ' Wilson’s Memorials of Edbihurijh, ii. 21.3. Mr. Wilson conjectures with some jirobability that the name of General’s Entry may have been given from the residence there of the Earl who was made Lieutenant-General after Malflaquet, but is generally known by his later rank as Field-Marshal Stair. He mentions two curious ornaments of the house, and a sun-dial at the south¬ east gable, with the motto “We shall die all,” the other a shield, bearing the unusual heraldic device of a monkey, with three stars in chief, and the initials J. D. ^ “ Le 18 Novembre 1659, il donna I’ordre de marche, partit ce meme jour en avant de son arm^e avec son litat m.ajor et se rendit il Hadding- —Guizot’s Monk, p. 93. ^ Forbes’s Preface, p. 32. 68 LORD STAIR. also urged him to set “ the course of justice agoing,” a char¬ acteristic counsel from one whose chief interest in life was the just administration of the laws. Monk appears to have com¬ municated to Stair the progress of his march. One letter at least, MTitten from Dunstable, was seen by Forbes^ in the hands of Sir James Dalrymple of Borthwick, Stair’s second son. The intimacy of Stair with Monk is a remarkable episode in his life, and affords considerable light on a side of his char¬ acter, which must not be overlooked in a fair estimate of it. iN'either of them was of the rare stuff of which heroes or martyrs are made. They were both men of that disposition which is called by some cunning or politic, by others cautious and prudent. A settled Government appeared to them, at this juncture, more important than the form of Government, nor did they shrink from such personal advantages as fell to their share for contributing to its establishment. It was their misfortune, as it must sometimes be, of the supporters of monarchy, that the personal character of the monarch was not such as could command respect. So far from being a defender of absolutism. Stair’s influence and conduct steadily leant to that limited form of monarchy which has been re¬ garded as an axiom of the British Constitution. “As to the matter of Civil Government,” he writes in a remarkable pas¬ sage of his Apology^ “ since I was capable to consider the same, I have ever been persuaded that it was both against the interest and duty of Kings to use arbitrary government; that both King and subjects had their title and rights by law, and that an equal balance of prerogative and liberty was necessary for the happiness of a Commonwealth.” ^ ^ Forbes’s Preface, p. 32,—who says the date of this letter was 27th January 16|§. Monk entered London on the 13th February 1660. M. de Bourdeaux to M. de Brienne.—Guizot’s Monk, p. 273. ^ Afolorjy, p. 4. ^ A Treatise on the Eights of Kings and Subjects is amongst his lost works. See Apology, p. 4. VIEWS ON PREROGATIVE AND LIBERTY. G9 Although in his^ dedication of the Institutions to Charles II., there is some of the flattery of the age, it is more sober than that of most of its writers; his refusal of the Declaration in 1663, his exile on account of the Test imposed in 1681, and the part he took in the Eevolution of 1688, prove that this declaration against arbitrary government was sincere. It was not wonderful that in the minds of those who had witnessed the troubles of the civil war, and the period which had pre¬ ceded it, there should arise a horror of bloodshed and desire for peace. “ Victor sine sanguine ” was the motto which Monk, shrewdly conscious of his best title to honour, assumed, and Stair was specially sohcitous to show, and, it will be presently seen, showed successfully, that he discountenanced the severity with which the Government of Charles treated his old associates of the Covenant. Charles and his ministers were not slow in measures of retahation. Within a few months Argyle^ was beheaded and Guthrie hanged.® Eutherford’s Lex Rex was burnt by the hangman, both in Edinburgh and St. Andrews. The inscrip¬ tions on the tombs of Alexander Henderson at Edinburgh and George Gillespie at Kirkcaldy were defaced. The corpse of klontrose was disinterred from the Boroughmuir and reburied with great state in St. Giles’s. Under the shelter of the Eescissory Act, by which all the Acts of Earliament since 1 Tlie practice of flattery in dedications was thus defended by one wbo was certainly as free from it as any English writer : “ I do not myself think a man should say in a dedication what he could not say in a history. How¬ ever, allowance should be made, for there is a great difl'ereiice. The known style of a dedication is flattery; it professes to flatter. There is the same difference between what a man says in a dedication and what he says in a history, as between a lawyer pleading a cause and rejjorting it.”—Dr. John¬ son, in Boswell’s Tour to the Hebrides, p. 353. ^ Argyle’s execution was on 17th May 16G1. ^Guthrie was hanged in June ICGl. “We saw Argyle and Guthrie, their heads standing on the gates of Tolbooth.”—Ray’s Itinerary, 20th August IGGl. 70 LORD STAIR. 1G39 were declared null, Charles broke liis oatli^ and restored Episcopacy. Yet the Government took credit, and perhaps, considering the times, deserved some, for its clemency. Soon after Charles’s accession. Stair went to London" with Lord Cassilis, one of his companions in Holland, to pay his respects to the King, by whom he was received with favour, knighted, and appointed one of the judges of the Court of Ses¬ sion, in the new nomination on 13th February 1661.^ The Earl of Glencairn was made Chancellor of Scotland, and in his absence Sir John Gilmour was appointed to act as President of the Court.^ Sir George Mackenzie mentions that, “in the nomination of the College of Justice, each great man was allowed a friend or two, till the list was compleatbut Stair probably owed his place to the personal favour of the Kiug.^ 1 When the Scotch records were returned to Edinburgh after the Restora¬ tion, “it was suggested to Clarendon that the original Covenant, signed by the King, and some other declarations under his hand, were among them, and he, ap 2 )rehending that at some time or other an ill use might be made of these, would not suffer them to be sliipped till they were visited, nor would he take Primrose’s 2 )romise of searching for them carefully and sending them up to him. So he ordered a search to be made. None of the papers he looked for were found.”—Burnet’s History of His Ou-n Times. Eighty-five hogsheads of the Scotch registers were lost on their way to Scotland by the shijiwreck of the vessel in which they were conveyed. ^ This was in the end of May or beginning of June 1660. Lord Lome writes to Lauderdale on 24th May : “ I am now resolved, almost with all Scotland, to seek the satisfaction to kiss Ids Majesties hand. No man in this country so old, or sulky, or sullen, or peevish, but is making ready. The Earl of Cassilis is on Monday next to be at the first meeting of a shire, .and it is believed from that he sets forward.”—Lauderdale mss. in British Museum, 21. 37. ^ Act. Pari. vii. 124. He took the oath of allegiance on 5th April.—Act. Pari. vii. A 1121 . 33. * Thirteen of the new judges were knighted; only two, Mr. Robert Burnet and Mr. James Robertson, “ renuncit the order of knighthood.” “All these foirnamed 23ersones,” Nicol observes, “were able judicious men.” —Nicol’s Diary, 355. ® “ And I know that the King allowed his friends to accept such Commis¬ sioners as were necessary for 2 'reserving his 2>eo25le, and therefore when he was restored I was one of the senators of the College of Justice in the first nommation.'’ — Apology, 2). 4. JUDGE IN NEW NOMINA TION BY CHARLES I. 71 In November of the same year, Gilmour having been called to London to advise as to the marriage articles between Alon- mouth and the Duchess of Buccleucb, Stair was named by the Earl of Middleton, the King’s Commissioner, Vice-President, to take the Chair during his abseuced He was also put on the new Commission’ for the Planta¬ tion of Kirks and Teinds, and on that for raising the King’s Annuity in the shire of Wigton,^ where his wife’s estate of Carescreoch was situated. Stair rebuilt, about this time, the mansion-house on that property, which became his favourite residence, retreating to it whenever relieved from the business of the Court, and employing himself actively in the manage¬ ment,^ both of that and his paternal Ayrshire estate. This combination of the country gentleman and the lawyer was long a distinguishing mark of the Scotch judges,® several of whom did much for the improvement of agriculture. Their descend¬ ants still own a considerable portion of the soil of Scotland. ' Forbes’s Preface, p. 32. ^ 4th March 16G1 ; Act. Pari. vii. 48. ^ 29th March 1661 ; Act. Pari. vii. 92. On 5th July 1661 ; (Act. Pari, vii. 295.) He was also ajjpointed one of the Commissioners for ascertaining the losses and annual rents of James Duke of Hamilton and otliers. Statistical Account of Scotland, Wigtonshire, p. 70. ^ Lord Karnes was the most notable of these, hut he is by no means a solitary example. CHAPTEE V. 1661-1671. stair Judge of Court of Session—Government of Scotland under Charles ii. —The Royal Prerogative restored—First the Earl of Middleton, and afterwards the Earl of Lauderdale, at the head of Scotch affairs—Stair deprived of office for refusing the Declaration, but restored by Charles—Visit to Paris—Created a Baronet— Tragedy of his daughter, Janet Dalrjunple, the Bride of Lammermoor—Different and inconsistent versions of the story—Other superstitious stories about mem¬ bers of Stair’s family—One of the Scotch Commissioners to treat of the Union- Failure of this project—On the resignation of Sir John Gilmour, appointed President of tlie Court of Session—Sir George Mackenzie’s character of him— Made a member of the Privy Council of Scotland. The next ten years of the life of Stair, although marked by a domestic tragedy, were not memorable as regards public affairs. Scotland had now resumed a secondary position, and a Judge, though not entirely removed as now from pohtics, was chiefly occupied with the discharge of the duties of his office. The joy with which the Scotch nation hailed the Ee- storation, its hopes of freedom and independent government, were quickly dispelled. If the rule of Cromwell^ had been galling to the feelings of a proud people, and in some respects 1 Cromwell himself had seen the position with a clear eye. He thus de¬ scribes the condition of the Scotch : “ In good earnest I do think the Scots nation have been under as great a suffering in point of livelihood and subsist¬ ence outwardly as any people I have yet named to you. I do think truly they are a very ruined nation. And yet in a way (I have spoken with some gentlemen come from thence) hopeful enough; it hath pleased God to give that plentiful encouragement to the meaner sort in Scotland,—I must say, if it please God, to encourage the meaner sort. Tlie meaner sort live as well and are as lilcely to come into as thriving a condition under your government as when they were under their own great Lords who made them work for their living no better than the peasants in France." —Cromwell’s Speech to the Eng¬ lish Parliament, 25th January 1C58. ROYAL PREROGATIVE RESTORED. 73 in fact severe, that of their own impoverished and intriguing statesmen, with first Middleton, and afterwards Lauderdale, at their head, was much more so. The first Session of the first Parliament of Charles ll. was chiefly occupied in restoring the Eoyal Prerogative in all the plenitude of the times of his father and grandfather. An oath was imposed on Members of Parliament, by which they acknowledged that the King was supreme governor of the khigdom over all persons and in all causes,^ implying his supremacy in ecclesiastical as well as civil matters. The appointment of Officers of State,^ the calling, holding, pro- roguhig, and dissolving Parliaments,^ and the right to make peace and war,^ were declared to belong to the Pmyal Prerogative. All Leagues and Conventions without the King’s authority were pronounced null.® The Convention of 1648® and the Parliament of 1649 were condemned, and the Covenant asserted to be not binding. All persons in office were to take the oath of allegiance and in addition an oath acknowledging the Eoyal Prerogative.’^ The famous Eescissory Act ® annulled the Acts of all the Parliaments since 1640, but judicial pro¬ ceedings during the Usurpation were saved unless impugned within a year.® Church government by presbyteries and synods was allowed in the meantime, but warned of its impending 1 1661, c. 2 ; Act. Pari. vii. 7. ^ c. 2 ; Act. Pari. vii. 10. ® 1661, c. 3 ; Act. Pari. vii. 10. ^ 1661, c. 5 ; Act. Pari. vii. 13. ® 1661, c. 4 ; Act. Pari. vii. 12. ^ 1661, c. 6 ; Act. Pari. vii. 16. ^ 1661, c. 9 ; Act. Pari. vii. 30. ® 1661, c. 15 ; Act. Pari. viL 86. The preamble of this Act should be read as the best exposition of the abject spirit of the time of the Restoration. Its enacting clause is : “ Therefore the King’s Majesty and Estates of Parlia¬ ment do hereby rescind and annuli the pretended Parliaments kept in the year one thousand six hundred and forty, one thousand six hundred and forty-one, one thousand six hundred and forty-four, one thousand six hun¬ dred and forty-five, one thousand six hundred and forty-six, one thousand six hundred and forty-seven, and one thousand six hundi'ed and forty-eight, and all acts and deeds past and done in them, and declares the same to be henceforth void and null.” ^ 1661, c. 12 ; Act. Pari. vii. 62. 74 LORD STAIR. fate by the same Act^ wliicli declared that his Majesty would make it his care to settle and secure the Church in such a form as should be most suitable to God’s Word, monarchical government, and the public peace.^ There could be little doubt what this meant in the mouth of the descendant of the author of the famous saying, “ No King no Bishop,” and who himself declared that Presbyterianism was not a religion for a gentle¬ man. A solemn anniversary was ordered yearly on the 29 th of ]\Iay, the birthday of Charles ® and the day of his Eestoration. In August of this year, Lauderdale, who was Secretary of State for Scotland in London, an office which gave him the King’s ear,^ wrote at the command of Charles to the Scotch Privy Council stating the royal intention to restore Episcopacy, and accordingly by the first Act of the Parliament of 1662 the former government of the Church by archbishops and bishops was re-established.® The Covenant and Solemn League and Covenant were declared unlawful oaths, and all persons speaking or publishing against the King’s supremacy in matters ecclesiastical incapacitated from public office.® A Declaration that it was unlawful for subjects to enter into Leagues and Covenants was imposed not merely on persons in office, but also upon advocates—a measure which even Sir George Mackenzie, a strong upholder of the Eoyal Prerogative, disapproved, remarking that advocates, not being persons in public trust, by the same rule the declaration should have been forced upon all the nation.^ Dining these two years the government in Scotland had been in the hands of the Earl of Middleton, a soldier of for- ^ 1661, c. 16 ; Act. Pari. vii. 87. ^ 1661, c. 16 ; Act. Pari. vii. 88. ^ Charles was born 29th May 1630, and entered London 29th May 1660, but the Acts of his reign are dated from the day of his father’s death. “ That my Lord Lauderdale is never from the King’s eare nor council, and that he is a most cunning fellow.”—Pepys’s Diary, 2d March 1663-4. * 1662, c. 1 ; Act. Pari. vii. 372 : Act for the restitution and re-establish¬ ment of the antient Government of the Church by Archbishops and Bishops. ® 1662, c. 2 ; Act. Pari. vii. 377. Mackenzie’s History, j). 65. ■ LA UDERDALE SUCCEEDS MIDDLETON. 75 tune^ who had first distinguished himself in the service of the English Parliament, hut had afterwards done good service both for Charles l. and Charles il., and shared the exile of the latter. At the Eestoration he was created Earl,^ made Com- mander-in-Chief in Scotland, Governor of Edinburgh Castle, and represented the King as Commissioner in the Parliaments of 1661 and 1662. A devotee of arbitrary government without political tact, he forgot this meant the will of the King and not his own, and by the rash attempt to incapacitate his rival Lauderdale in the Act of Billeting, under which Lauderdale, the Earl of Crawford, and Sir Eobert Murray were named by secret voting amongst the twelve persons excluded from the Act of Indemnity, procured his own fall.^ Charles as in several other cases held an audience,^ and after a debate in which Middleton and Lauderdale incriminated each other, decided as a personal monarch who should rule Scotland. Middleton was dismissed from all his offices, and the dissipated Earl of Eothes ® sent as Commissioner in his room,® but the real power was vested in Lauderdale^ who remained in London as Secretary of State for Scotland. This ^ “ A man of moderate understanding, not covetous, but a soldier of for¬ tune and poor.”—Pepys’s Diary, 15th April 1667. ^ Crawford’s Pee.raye, 332 et seq. ^ The Act of Indemnity is 1662, c. 10; but the twelve persons were excepted from it by two separate Acts which were entitled the Act for excepting of Persons from Public Trust, and the Act for Voting the same by Billets, both of which were rescinded by the King’s command in 1663 ; Act, 9th September 1663, Act. Pari. vii. 471. Mackenzie’s History, p. 73. Brown, Miscellanea AuUca. ^ There are some curious letters from him to Lauderdale, defending him¬ self against charges of drunkenness and horse-racing, amongst the Lauder¬ dale MSS. ^ Sir James Turner’s Memoirs, p. 136. ^ “ That my Lord Lauderdale, being Middleton’s enemy and one that scorns the Chancellor, even to open affronts before the King, hath got the whole power of Scotland into his hand ; whereas the other day he was in a fair way to have had his whole estate and honour and life voted away from him.”—Conversation of Mr. Alsopi>. the King’s brewer, with S. Pepys, 22d February 1663-4. 7G LORD STAIR. clever and even learned, but unscrupulous and coarse states¬ man has left the impress of his character on the dismal page of Scotch history which is filled with the sufferings of the Covenanters during the next twenty years. Had Charles sooner listened to the complaints of his opponents, and dis¬ missed him from the management of Scotch business, the fate of the Stuart race might possibly have been averted for a time. It required a long course of misgovernment to alienate the Scotch people from their hereditary kings.^ By an Act^ passed on the 7th of August, the Declaration was re-enacted in Scotland, and the oath ordered to be imme¬ diately taken. All persons in public trust were required to declare that they “judged it unlawful to subjects, uj)on pre¬ tence of reformation or other pretence, to enter into Leagues or Covenants, or to take up arms against the King or those commissioned by him, and that all the gatherings, convoca¬ tions, petitions, protestations, and erecting and keeping of council tables that were used in the beginning and for carry¬ ing on the late troubles, were unlawful and seditious; and, particularly, that the oaths, whereof the one was commonly called the Kational Covenant and the other a Solemn League and Covenant, were and are unlawful oaths, and were taken by and imposed upon the subjects of this kingdom against its fundamental laws and liberties.” The King, by a letter on 19th December 1662, ordered the Lords of Session who® had not yet taken it to do so within a fixed date. ^ “No part, I believe, of modern history can be compared, for the wicked¬ ness of government, to the Scots administration of this reign, . . . the tyranny of Lauderdale far exceeding that of Middleton as his own fell short of the Duke of York’s.”—Hallam’s Constitutional History, iii. 328. “The Parliament of 1661,” observes the same writer, p. 327, “influenced by wicked statesman-lawyers, left far behind the royalist Commons of London, and rescinded as null the entire Acts of 1641 on the absurd pretext that the late King had passed them through force. The Scots Constitution fell back at once to a state little better than despotism.” 2 Act. Pari. vii. 472. 7th August 1663 ; 1663, c. 3. 3 Brodie’s Diary, 10th Nov. 1662, “ That Lee, Stair, and Arniston refused the Declaration.” REFUSES DEC LA RA TION A ND RESIGNS OFFICE. 7 7 Stair and some of his colleagxies had refused to take it in the previous year. He was at this time absent at the funeral of his mother, who had the good fortune to witness his pro¬ sperity and to die before the troubles of his later years. He did not take his seat on the bench during the winter session of 1G63, and had been present for the last time at a special meet¬ ing of the Court called during the preceding vacation in Sep¬ tember, when the Lords gave their consent to the purchase by the Magistrates of Edinburgh from Lord Lauderdale of the Citadel of Leith, which had been recently erected into a regality in his favour; this consent being necessary, as part of the revenues of the Court was secured on the money which the Magistrates wished to apply for the purchase. On tlie 5th January 1664, the King’s letter ordering the declaration to be taken by the recusant Lords was read by the Chancellor to the Court, which ordered letters to be written to those of their body who still lield out. Lords Arniston,^ Stair, Bedlay, and Tarliet; and Lord Glencairn as Chancellor wrote to Stair that if he did not come in and take the Declaration before the 19th of January, his seat would be declared vacant. He replied in the following letter to the Chancellor that his resignation was already in the King’s hands :— O “ Air, January 15^7^, 1664.* “ My Lord,— Your Lordships of the 5th instant I receaved this day shewing that liis Majestie, by his letter under his royall hand of tlie 19th December last, had requyred your Lordship to appoint a day in whicli the absent Lords of Sessione may either subscrybe the declaration or refuse it, to ^ Lord Arniston made a re])ly similar to that of Stair, and was like him deposed. Lord Bedlay pleaded ill-health, and was allowed longer time, hut died in the spring following. Lord Tarbet urged that he had already taken the oath in Parliament, and his colleagues were apparently willing to accept this excuse, but a special letter from the King ordered his deposition for the part he had taken in the Act of Billeting, and his place was declared vacant 16th February 1664.—MS. Books of Sederunt, Register House, Edinburgh. * MS. Books of Sederunt, 1661-74. 78 LORD STAIR. the end his Majestie may take care for supplying the place of such as sould refuse, and therefore that your Lordships had assigned the 19th of this instant for me to give my ansyre thereanent. My Lord, I have alreadye, before the date of his letter, sent up to London a resignatione of my place in the Sessione in his Majesties royall hand, whereby I hope your Lordship and the rest of the Lords will be satisfied that I need not come to give any further ansyre to your Lordships letter. I sail not cease qll I breath to be faithfull to his Ma'^'® and to doe him all service I can in whatever statione I be in, and sail be readie to doe what service I can to your Lordship and that honourable House which I soe much love and honour as you sail be pleased to command.—My Lord, your Lordships most obedient humble Servant, Ja. Daleymple.” His place was accordingly declared vacant four days after.^ This act showed courage, for he risked by it more than his seat on the Bench, but Charles summoned him to London, and allowed him to take the declaration with a qualification^ that he was content to declare against whatever was opposite to his Majesty’s right and prerogative, giving him a writing to that effect.® ' MS. Books of Sederunt, lOtli January 1664, Register House, Edinburgh. This evening, writes William Sharpe to Lauderdale, “the President calls me, and tells me that after consideration had of Stairs letter to the Lords this day, they had declared his place vaking.”—Lauderdale Papers, British Museum. “ But when the Declaration was enacted by Parliament, required of all in public trust, I did rather renounce my place than take it, and did retire into the country, where I lived a year privately and quietly ; but without any desire and expectation. King Charles called me to London, and desired me to return to my status in the Session, and when I told him I could not sign the Declaration unless it were so explicated and restricted that by the . general terms expressed in it I did declare against no more than what was opposite to his Majesty’s right and prerogative, and that I should have these terms from his Majesty in writing, which he granted, and I have yet to show which the Act of Sederunt at my restitution doth import.”— Apology, p. 4. 3 In an obscure passage William Sharpe writes to Lauderdale on 16 th April RESTORED TO OFFICE BY CHARLES. 79 Accordingly a royal letter was addressed by the King to tlie Court in tlie following terms:— “ Right trustie and Right well-beloved Cousins and Counsellors, Right trustie and well-beloved Counsellors and trustie and well- beloved : wee greete you weill. Having heard Sir James Dal- rymple of Staires, one of jmur number, clear himself in the matter of the declaratione appointed to be taken be all in public trust (which he at his return will take), and being well satisfied there¬ with, and with his good affection to our service, and with his great abilities to serve in that station. We did not think fit to accept of the warrant formerly sent us for demitting his place into our hands (of which demission no use has been maid), therefore our pleasure is that he, signing the said declaration, doe continue in his place as one of the ordinary Lords of Sessione in the same manner as formerly, and as if the warrant for his demission had never been maid, and so we bid you fiireweil. Given at our Court of Whythall, the 21st day of Apryll 1664, and our reign the 16th year. By his command, sic subscribitur Lauderdail.” In compliance with this letter, he was readmitted, and the Act of 19th January declaring his place vacant rescinded. Immediately after receiving the King’s letter he made a short tour to France^ with his eldest son, the Master of Stair, and 16G4:—“ Mr. Hastie.his cousin, here says,that my Master,his little elder” (this is said to refer to William, Master of Craufurd, afterwards eighteenth Earl), “ has writ here of late in French that Stair, who is now with my Master, was called from this upon the express condition that neither Sheldon nor the Black Lawyer (the Chancellor, Lord Glencairn, or Sir John Gilmour, President), shoidd know of it. So that some think my Master intends to briny him off without doing what others have done, but neither of the tiuo . . . will be well pleased if he be not ne.ighbourlike." —Lauderdale Papers, British Museum, 37. no. “We arc told now',” writes Archhishop Sharpe to Lauderd.ale on 21st A]iril, “that Stair is sent for to be. dispensed with as to his taking the Declara¬ tion, and that the eyes of our adversaries are much upon him, hut I think he is more wise than to put himself in a singular condition.”—Landerdale Papers, British Mu.seum. 1 From a letter by Stair to the Earl of Argyle, w'ritten from Paris, which belonged to Mr. Thomas Thomson, and W'as seen by Dr. Irving (see his Life of Stair, p. L)"), it appears Stair left London on 22d, and arrived in Paris 29th April 1004. This letter, it is to be hoped, is still extant, but though I have made inquiry I have not discovered it. 80 LORD STAIR. visited Paris. The satirist alludes to this in some obscure lines— “ He sware and 0 rare keept three Kingdoms quat {i.e., quitted) For France two months before he Would do that,” which are explained by their Jacobite annotator Eobert IMylne, “ that he had sworn that he would rather goe to France than take the Declaration.”^ It seems more probable that he was anxious to see the magnificent capital and brilliant Court of Louis XIV., who then attracted the admiration of Europe, and gratified the pride of France, but is now seen to have sown the seeds of its decay. He resumed his seat^ on his return on 9th June 1664. A week before, he had received a further mark of the royal favour, being created a baronet. During the next five years there is nothing of moment to relate in the life of Stair. The few memorable events in Scotch history during this period were the institution of the Court of Ecclesiastical Com¬ mission at the instigation of Sharpe, Archbishop of St. Andrews, in 1664, who seemed to emulate the fame of the Star Chamber and of Laud ; the exaction of severe fines and quarterings in the western shires by Sir James Turner, the rising of the Covenanters, which was suppressed by the “ Muscovite ” ^ General Dalzell at the Pentland Hills, in 1666, the appearance for a brief in¬ terval of a milder administration under the influence of Lord Tweeddale and Sir Eobert Murray, shown by the trial and dis¬ missal of Turner, the indulgences to the outed ministers, granted by Lauderdale, and the accommodation or comprehension, un¬ successfully attempted by the saintly Bishop Leighton.^ In 1 Maiclment’s Scotch Pasquils, p. 180. 2 MS. Books of Sederunt, 1661-74, Register House, Edinburgh. 2 Dalzell and General Drummond, afterwards Lord Strathallan, had been reealled from the Russian service by Chai’les. * Leighton’s attempt at a comprehension came to a point in 1670, but he had been preparing the way for it before. “ He went round some parts of country,” writes Burnet, “ to the most eminent of the indulged ministers. THE BRIDE OF LAMMERMOOR: 81 English history these were the anni mirabiles of the Plague, the Dutch war, the Fire of London, and the Triple Alliance. Towards the close of 1669, the family of Stair was sad¬ dened by the tragedy which “ the Bride of Lammermoor ” has made familiar to many to whom his name would otherwise be unknown. Lord Macaulay has adopted this story in one of those brilliant passages which, unfortunately for his future fame as an exact historian, will not bear examination. Select¬ ing from every quarter the blackest colours to paint the char¬ acter of Stair, the father of the man destined to be the scape¬ goat of William ill. for the massacre of Glencoe, he says, “ One of his daughters had poniarded^ her bridegroom on her wedding night.” The suggestion conveyed in this that a daughter of and carried me with him. His business was to persuade them to hearken to propositions of peace. He told them some of them would be quickly sent for to Edinburgh, where these wo\ild be offered to them in order to the making up our differences : all was sincerely meant. They would meet with no artifices, no hardships ; and if they received those offers heartily, they would be turned into laws, and all the vacancies in the Church would be filled by their brethren. They received those offers with so much indiffer¬ ence, or rather neglect, that would have cooled any zeal that w'as less warm and less active than that good man’s was. They were scarce civil, and did not so much as thank him for his tenderness and care. The more artful among them, such as Hutcheson, said it was a thing of general concern, and they were but single men. Others were more metaphysical, and entertained us with some poor arguings and distinctions. Leighton began to lose heart. Yet he resolved to set the negotiation afoot, and carry it as far as he could. When Lord Lauderdale came down to hold a Session of Parliament, letters were writ to some of the Presbyterian preachers, ordering them to come to town. There was a long conference between Leighton and them before the Earls of Lauderdale, Eothes, Tweedale, and Kincardine. Sharp would not be present at it, but he ordered Paterson, afterwards Archbishop of Glasgow, to hear all, and to bring him an account of what passed.” The account of the conference, and of the subsequent one at Paisley, is very interesting, but too long to transcribe here. The result was the rejection of the overtures by the Presbyterians, which was to be expected, as Episcopacy was an essential part of them.—Burnet’s History, i. 296 et seq. Macaulay’s “poniard” is i)robably borrowed from Scott’s fiction: “ The fatal weapon was found in the chamber smeared with blood. It was the same poniard which Henry should have worn on the wedding day.”— Bride of Lammermoor; Waverley Novels, Ed. 1830, xiv. p. 355. F 82 LORD STAIR. Stair murdered her husband is certainly untrue, for Dunbar of Baldoon, who is here referred to, and who was married^ to Janet Dairymple on 12th August 1669, died from an accidental fall off his horse between Holyrood House and Leith on 28th March 1682.^ What germ of truth there is in the traditions which have come down to us chiefly from the fierce antagon¬ ists of the Dalrymples concerning this lady, it is much more difficult to determine. The Eeverend Eobert Law, minister of Inchinnan, Stair’s old pupil, whose Memorials are a strange record of the superstitions of the times, relates amongst his many stories of ghosts, witches, and their supernatural doings that “ The President had a daughter before this time, being married, the night she was bride in, was taken from her bride¬ groom and harled through the house [by spirits we are given to understand], and soon afterwards died.” In this, the earliest edition of the story, there is no poniard and no violence used by the lady. Mr. Kirkpatrick Sharpe, the Jacobite editor of Law’s book, gives two versions of the story without stating the authority for them, which contradict each other in the material point who was the actor in the tragedy. According to the first of these, “ Lady Stair, v/ho did not approve of her daughter’s choice of a husband, after a vain opposition, told her, ‘Weel, ye may marry him, but sair shall ye repent it,’ and accordingly on the bridal evening, after Lady Stair herself had locked the door of the chamber where the young couple lay, and carried away the key, a precaution usual at that time, in order to prevent numberless coarse jokes meditated by the marriage guests, most dismal shrieks and groans were heard to issue from the bedroom which alarmed every member of the house¬ hold ; the key was immediately called for, and it is alleged 1 “Nupta August 12, Domum Ducta August 24, Obiit September 12, Sepulta September 30, 1669.” Sucb is the short but perhaps only trust¬ worthy record of this tragedy. ^ “ At the Quarrel Holes, near Edinburgh.”—R. Mylne’s Note to Pasquil on the Stair Family, Maidment’s Scottish Pasquils, p. 198. CONTRADICTORY VERSIONS OF THE STORY. 83 Lady Stair relinquished it with remarkable unwillingness and delay. When the door was opened a shocking spectacle pre¬ sented itself. The young lady, weltering in her blood, lay extended upon the bed, and her husband, in a state of idiocy, was seated in the chimney, glaring with his eyes and laughing in a hideous manner.”^ In this account, it will be noticed, it was Staii-’s daughter and not her husband who suffered the injury on the fatal night, which agrees wdth the fact of her untimely death, little more than a fortnight after marriage. The second account re¬ verses the parts, and relates how, “after she retired with the bridegroom into the nuptial chamber, the door being locked, she attacked him furiously with a knife, and wounded him severely, before any one could gain admittance. AVhen the door was broken open, the youth was found half dead upon the floor, and his wife in a state of the wildest madness, exclaiming ‘ Take up your bonnie bridegroom.’ It is added that she never recovered her senses, and that her husband, who recovered of his wounds, would bear no questions on the subject of his marriage, taking even a hint of that nature as a mortal affront to his honour.” Yet a third tradition has survived in the Dalrymple family that it was Kutherfurd, the disappointed suitor, who assaulted Dunbar on the wedding night.^ Nothing less than the agency of the archfiend himself would satisfy the ribald satire of Sir William Hamilton of Whitelaw, who after¬ wards disgraced the judicial bench, and was the rival of Sir Hew Dalrymple for the office of President on the death of Stair.^ 1 Law’s Memorials, p. 226. 2 Sir J. H. Elphinstone’s letter to Sir J. Stewart Denham, printed in Bride of Lammermoor, Abbotsford Edition. ^ Hamilton suffered more than he inflicted by satire. In one of the few Pasquils which ap[)roach to wit be is thus described :— “Old Nick was in want of a lawyer in hell, To preside o’er his Court there of Session, So old Whytlaw he took, for he suited him well For tyranny, lust, and oppression ; 84 LORD STxUR. “ Nick did Baldoon’s posterior right decide, And as first substitute did seize the bride; Whate’er he to his mistress did or said, He threw the bridegroom from the nuptial bed Into the chimney, did so his rival maull His bruised bones ne’er were cured but by the fall.” On the other hand, Andrew Symson, minister of Kirlcinner,^ the historian of Galloway, describes both bride and bridegroom, in verses nearly as bad as Hamilton’s satire, as clothed with all the virtues:— “ A virtuous lady, not long since a bride. Was to a hopeful plant by marriage tied And brought home hither. We did all rejoice Even for her sake. But presently our voice Was turned to mourning for that little time That she’d enjoy. She waned in her prime, For Atropos, with her impartial knife. Soon cut her thread and therewithal her life. And for the time we may it well remember. It being in unfortunate September, Where we must leave her till the resurrection. ’Tis then the saints enjoy their full perfection.” Dunbar was painted in a subsequent elegy as a perfect para¬ gon :— “ His body, though not very large or tall. Was sprightly active, yea, and strong withal; His constitution was, if right I have guessed. Blood mixed with choler, said to be the best; ’Twixt the Devil and Whytlaw, the poor wretches damned Will be sore put about in that hot land, For now the fierce Justice-Clerk’s got the command They could hardly be worse off in Scotland.”— Maidment’s Scotch Pasquils, p. 262. Sir Walter Scott, by an error which deprives his account of all claim to accuracy.in detail, makes Hamilton, who was only called to the Bar in 1664, the rival of Stair himself for the office of President, and not of his son Hew. —Introduction to Bride of Lammermoor, p. 247. ' Elegy on the unexpected death of the virtuous lady, Mrs. Janet Dal- rym 2 de. Lady Baldoon, younger.—Advocates’ Library. SYMSON’S ELEGIES. 85 In’s gesture, converse, speech, discourse, attire. He practised that which wise men still admire— Commend and recommend. ‘ What’s thatl’ you’l say. ’Tis this : He ever choosed the middle way ’Twixt both tlie extremes. A’most in ev’rything He did the like, ’tis worth our noticing. Sparing, yet not a niggard, liberal. And yet not lavish nor a jjrodigal. As knowing when to spend and when to spare, And that’s a lesson which not many are Acquainted with. He bashful was, yet daring When he saw cause, and yet therein but sparing; Familiar, yet not common, for he knew To condescend and keep his distance too; He used, and that most commonly, to go On foot. I wish that he had still done so. The affairs of Court were unto him well known. And yet meanwhile he slighted not his own j He knew full well how to behave at Court And yet but seldom did thereto resort. But loved the country life, choosed to inure Himself to past’rage and agriculture.” ^ But enough has been quoted of the minister of Kirkinner’s panegyric, which seems to have been partly due to Dunbar’s attending his church when it was deserted by the rest of his congregation:— “ So that my muse ’gainst Priscian avers He, only he, were my parishioners. Yea, and my only hearers.” If Symson’s sermons were like his poems, attendance on them received an appropriate recompence in such an elegy. Scott’s account of the story in the Introduction to the Bride of Lammermoor and in the novel itself is a compound of the various traditions, the satire, and the elegies, with some 1 A Funeral Elegie, occasioned by the sad and much-lamented death of that worthy, respected, and very much accomplished gentleman, David Dun¬ bar, younger of Baldone, etc., by Andrew Symson, minister of Kirkinner.— Advocates’ Library. 86 LORD STAIR. additions received orally from members of the Dalrymple family.^ Told by a master of story in a singularly vivid and pic¬ turesque manner, it is not wonderful that it has made most impression on the imagination of posterity. While he dis¬ claims the intention of “ tracing the portrait of the first Lord Stair in the tricky and mean-spirited Sir William Ashton,” and pronounces Stair, “ whatever might be his moral qualities, cer¬ tainly one of the first statesmen and lawyers of the age,” he avows that Lady Ashton may be supposed “ to possess some resemblance to Dame Margaret Boss.” ^ Out of this strange medley of the falsehood of superstition, the falsehood of satire, the falsehood of flattery, and the more honest fiction of the novelist, who shall reconstruct the facts ? Leaving the task to some future Browning, of whom the theme is not unworthy, all that shall here be said is that the unhappy marriage and early death of Janet Dalrymple are ascertained, and that some dispute with regard to who should be her hus¬ band is probable.^ ^ “A lady, very nearly connected witli the family, told the author that she had conversed on the subject with one of the brothers of the bride, a mere lad at the time, who had ridden before his sister to church. He said her hand, which lay on his as she held her arm round his waist, was as cold and damp as marble. But, full of his new dress and the part he acted in the procession, the circumstance, which he long after remembered, with bitter sorrow and compunction, made no impression on him at the time.”— Introduction to Bride of Lammermoor, p. 243. I have not discovered Scott’s source for saying that Lady Stair quoted Numbers xxx. 2-5 to induce her daughter to break her troth to Lord Eutherfurd, the uncle of Dunbar, with whom she is said to have been pre-engaged. 2 Introduction to Bride of Lammermoor, p. 254. 3 Murray, Literary History of Galloway, p. 157, argues that the whole story is a fiction, which “ originated in superstitious ignorance or the rancour of personal and political enmity, and has since been illiberally perpetuated by Episcopal and Jacobite writers.” He points out “ that some passages in Symson’s Elegy are inconsistent with it, especially as it says she was brought home to Baldoon’s and enjoyed the marriage state for some little time.” But I am not able to accept this as a complete explanation. SUPERSTITIOUS STORIES. 87 The tales of witchcraft connected with the Dalrymples were not confined to Janet and her mother. Another daughter of Stair, who was subject to fits, was believed by the superstitious to have an evil spirit, which gave her power to leap over high walls, or, as the satirist amplifies it:— “ Who without wings can with her rumple flye, No midding foidl did ever mount so high. Can skip o’er mountains, over steeples soare, A way to petticoats ne’er known before; Her flights not useless, though she nothing catch. She’s good for letters when they need dispatch. When doors and windows shut cage her at home She ’1 play the shuttlecock through all the room. This high-flown lady never treads a Stair To mount her wyse lord’s castles in the air.” This wonderful personage was Sarah Dalrymple, third daughter of Stair and wife of Lord Crichton, eldest son of the Earl of Dumfries. Nor were his male descendants free from the misfortunes supposed to attend his family, though Satanic influence seems to have been ascribed only to its female members. Besides the accidental shooting of his elder brother by his grandson John, the future Eield-Marshal Stair, which the satirist Hamilton does not scruple to magnify into parricide,^ Burnet, who evi¬ dently had no dislike to repeat the scandal of the time to the discredit of Stair, relates that “ his eldest son rode over a child and dashed out its brains; and another, being in a fever, snatched at somewhat that lay by him and swallowed it down, which proved to be cantharides for a viscatory plaster, with which he was ulcerated all within, and died in extreme misery. Another of his sons, in a fit, fell into the fire, which burnt out half his face.” Tliese childish stories, for which there may or * “ Stair’s neck, mind, wife, sons, grandson, and the rest, Are wry, false, witch, jieats, parricide, possessed,” etc. Motto to Hamilton’s lampoon on Stair Family. 88 LORD STAIR. may not have been some foundation in fact, when distorted into signs of the Divine wrath against the family of Stair, are as it were the Nemesis of the Greek tragedy stript of all its dignity, and clothed in the vulgar garb of Scotch superstition of the seventeenth century. It will be necessary to recur to them, and to consider some of the other causes which produced them in connexion with the character of Lady Stair. In August 1670 Stair was appointed by the King one of the Commissioners of Scotland, under the authority of an Act of Parliament of 30th July 1670,^ to meet Commissioners of England and treat concerning a union of the two kingdoms. A more intimate union than the personal union of the crowns, effected by the accession of James vi. to the throne of England in 1603, was no new idea. It had been a favourite project of that monarch,^ who first suggested the name of Great Britain. It had engaged the comprehensive mind of Bacon.® It had been in view in all Cromwell’s schemes for the govern¬ ment of Scotland. In 1653 the Protector had summoned Scotch Commissioners to London to treat of a union, and for a short time it had been almost accomplished by the election of Scotch members to sit in the Parliament of England. When after the Eestoration the form of government was settled, the scheme was again renewed, it is said, at the suggestion of Lord Tweeddale,^ 1 Act. Pari. viii. 6. ^ Burton’s History of Scotland, vi. 192. ® See his True Greatness of Britain, published by Stephens, 1634 ; and his Speech of 17th February 1606-7 ; Ellis and Spedding’s Ed. of Bacon’s Works, vii. 39 ; also his Case of the Post Nati, vii. 637, and Preparations for the Union of the Laws, vii. 727. “ Bacon,” writes Harrington to Secretary Barlow, “ is to manage all the affair [i. e. the uniting of the kingdoms], as who can better do these State jobs .”—Nugoe Antiquee, i. 353, quoted by Burton, vi. 203. ^ “ Lord Tweedale was then in London, and he set on foot a proposition that came to nothing, but made so much noise, and was of such importance, that it deserves to be enlarged on. It was for the union of both kingdoms. The king liked it, because he reckoned that at least for his time he should be sure of all the members that could be sent up from Scotland. The Duke of Buckingham went in easily to a new thing, and Lord-Keeper Bridgman A COMMISSIONER FOR THE UNION. 89 and was recommended in Lauderdale’s speech to the Parlia¬ ment of Scotland in 1669. A joint Commission of English and Scotch members was appointed in the following summer, and Stair, with the other Scotch Commissioners, having gone to London, where the negotiations were to he held, on 13th Sep¬ tember kissed the king’s hand in the withdrawing-room of his bed-chamber, at Whitehall. On the following day the Commissioners for both kingdoms met in the Exchequer Chamber at Westminster, the Archbishop of Canterbury being in the chair, with the Lord-Keeper, Sir Orlando Bridgman, on his right, and the Earl of Lauderdale on his left hand ; and the Commissions were read, the Scotch in Latin, conform to the Scotch custom, the English in their own tongue. The heads for discussion proposed by the king were— 1. The preserving to either kingdom their laws, civil and ecclesiastic, entire. 2. The uniting inseparably of the two kingdoms into one monarchy, under his Majesty, his heirs and successors. 3. The reducing of both Parliaments to one. 4. The stating of all privileges of trade and other advantages. 5. The securing of the conditions of the union. There were many private meetings of the Scotch Commis¬ sioners at the lodgings of the Earl of Eothes and the Earl of Lauderdale. One party, led by Sir John Nisbet, contended there should be no union, because the second and third articles were destructive of the fundamental government of Scotland, —tending to take away the Parliament of that country, which was beyond the power of the Commissioners.^ Lauder¬ dale and Stair, on the other hand, strongly advocated the scheme for union. A debate arose on the word “ successors ” in the second was much for it. The Lord Lauderdale pressed it vehemently. It made it necessary to hold a Parliament in Scotland, where he intended to be the King’s Commissioner.”—Burnet’s HUtory, i. 279, 280. ^ Mackenzie’s History of Scotland, p. 199. 90 LORD STAIR. article, both as ambiguous in itself, and because by the law of England any usurper coming to the Crown was the King’s successor, and in the end that article was carried with the omission of these words. The point was again raised at a meeting of the Joint-Commission, and the article at last voted in the form “ that the union was to be in the person of the King and his heirs and the posterity of King James.” The first article as to the preservation of the separate laws of the two kingdoms was next taken up,^ and the Scotch Commissioners appointed Stair, the Lord Clerk Eegister, the Lord Advocate, Lord Newbyth, and Sir Eobert Sinclair, Dean of the Faculty of Advocates, to consider it. When the Joint-Commission met on the following day, the report prepared by this Committee was read, and the question of appeals from the Court of Session to Parliament was started. It was objected by the English Commissioners as inconsistent, “ that one part of the monarchy should be liable to appeal before Parliament, and the other not liable; the Scottis alleg¬ ing that their decreets and sentences in civilibus were not at all questionable by their law by the Parliament of Scotland.” There followed several adjournments, during which the Scotch Commissioners considered the question of appeals, and finally determined “ that there could be no appeals from the Council and Session to the Parliament of Great Britain.” When the Joint- Commission again met, and before this point had been settled, a more formidable difl&cidty arose, the Scotch Commissioners insisting that in the united Parliament of Great Britain the existing number of members of the Scotch Parliament ^ should ^ 27th September, at Lord Lauderdale’s ; Mackenzie, Hktory, p. 20.“?. 2 The question of the number of members to be sent by Scotland to the Parliament of the United Kingdom had been a rock on which former projects of union had struck; see the remarkable speech of Sir Henry Vane in the Par¬ liament of Richard Cromwell, where he gives an account of what had been done by the Commission sent by Oliver Cromwell to treat with the Scotch, in which he stated “ that the Act of Union, in so far as related to representa¬ tion, had never been duly perfected.”—Forster’s Life of Vane, p. 141. APPOINTED PRESIDENT OF COURT OF SESSION. 91 be preserved. To this the English Commissioners refused their assent; and finally, the Earl of Lauderdale having referred the matter to the King, Charles, on 14th ISTovemher 1670, “ told the Commissioners that in regard of other weighty affairs he had upon him, he thought it not feasible at the time to bring that treaty to a conclusion, but that he would take another time to it.” The negotiations came therefore to an end, and “ that grand design,” says Sir George Mackenzie, “ which had so long exer¬ cised the thoughts and entertained the expectations of two kingdoms . . . stopped rather to the wonder than dissatisfaction of both nations.”^ Stair was not himself destined to live to see the accomplish¬ ment of the union of the two countries, but his son, the Master of Stair, was to be a main instrument in carrying the Act of Union through the Parliament of Scotland—a measure which was imperatively required for the further progress of both nations. The share which the Dalrymples took in advocating it was, however, undoubtedly one cause of their subsequent unpopularity in Scotland. On 22d December 1670, Sir John Gilmour of Craigmillar resigned the office of President of the Court of Session. The ordinary course of promotion pointed out Sir John Nisbet of Dirleton, then Lord Advocate, as his successor; but he declined it, and Stair was appointed. The royal letter,^ ^ Mackenzie, p. 211. ^ “ 13th January 1671. The quhilk day the Erie of Rothes, Lord Chan¬ cellor, did produce ane letter superscrybed by his Ma*‘° and directed to the Lord Chancellor, and the Senators of the College of Justice, whereof the tenor follows:—‘Charles R. Right trustie and well-beloved Cousins and Counsellors, Right trustie and well-beloved Counsellors, and trustie and well-beloved, we greet you weill. Whereas we granted commission for filling our College of Justice, upon the 13th day of February, in the 13th year of our reigne. And by it we did appoint Sir John Gilmour to be con¬ stant President, wherein he has served us faithfully, and whereas, by reason of his infirmitie and weakness, he has humbly and freely resigned his place and charge of President into our hands, to be disposed of as we shall think fitt, and that by a demission signed by him the 22d day of December 1670, 92 LORD STAIR. dated 7tli January 1671, was read in open Court, having been produced by the Lord Chancellor Eothes on the 13th, when Stair took the oath and his seat. He owed his appointment, according to Mackenzie, to Lauderdale, and this is probable, for that nobleman then dispensed all Scotch patronage. In connexion with it the same writer gives this estimate of the character of the new President, which is valuable from the many opportunities he had of observing Stair, from whom he differed on many points, and must have watched with that scrutiny which members of the same profession are apt to apply to their brethren:—“ And really Stair was a gentleman of an equal wit and universal learning, but most remarkable from being so free from passion that most men thought this equality of spirit a mere hypocrisy in him. This meekness fitted him extremely to be a president, for he thereby received calmly all men’s information, and by it he was capable to hear without disorder or confusion what the advocates represented ; but that which I admired most in him was that in ten years’ intimacy I never heard him speak unkindly of those who had injured him.” ^ Stair was at the same time nominated a member of the Privy Council, as was usual in the case of the President of the Court of Session, and took his seat in that body on 26th January 1671.^ therefore, we being confident of the ability, fidelity, and affection to our service of Sir James Dalrymple of Stair, doe nominat and appoint him to be constant President of the College of Justice in absence of our Chancellor, re- quyring heirby you as Chancellor to take his oath, and that he be admitted in the usuall form, and so we bid you heartily fareweill. Given at our Court at Whythall, the 7th day of January 1671. In the 22d year of our reign. Sic subscribitur by his Ma*“® command. Laudekdaill.” 1 Mackenzie, History, p. 214. 2 26th January 1671.—“ The said day. Sir James Dalrymple having, in presence of his Majesty’s Privy Council, taken the oath of alledgeance and of a Secret Councillor, and signed the declaration anent the Covenant, was admitted and received a member of Councell, conform to his Majestys letter foresaid.”—MS. Privy Council Records, Register House, Edinburgh. CHAPTEE VI. 1671-1676. stair President of the Court of Session for the first time—A Member of Commission for the Regulation of the Judicatories—Its interim Report in 1670 —Secession of the Advocates on account of limitation of their fees—Act of Regulations 1672— Stair Member of Parliament for shire of Wigton and one of Committee of the Articles—Legislation of this year—Act against Conventicles—Powers of Privy Council increased—Acts relating to Private Law—Inventories of Minors’ Estates —Summonses—Registration of Deeds—Privilege of Royal Burghs—The Ann— Special Adjudications—Debate before Lauderdale on proposal to abolish Summer Session of the Court—Again Member for Wigtonshire in Parliament of 1673— Incident of the Petition presented by the Women in the Parliament Close— Secession of the Advocates on the question of Appeal to Parliament from Court of Session—Conduct of the leading Advocates and of Stair on this occasion—The three leaders of the Bar at this period, Sir George Lockhart, Sir John Lauder, Sir George Mackenzie. Already, when one of the ordinary judges. Stair had given proof of his desire for an equal administration of justice hy calling all causes in the regular order of their enrolment.^ The arbitrary power exercised by the judges of following this or not as they pleased had been shamefully abused to favour their friends, both litigants and advocates. He had thus acquired the gTeatest character for despatch and justice of any man upon the bench.^ 1 Forbes’s Preface, p. 31. ^ “ And all along, when Lord Stair was a single Lord of Session, and sitting by turns on the Bench in the Outer House, where most of the cases and processes are heard and discussed in the first instance by a single Lord, and where the judges, as to their parts, judgment, justice, or injustice, are mostly known, having none other of the Lords’ votes to interfere with their judgment, he had the greatest character of dispatch and justice of any man that ever sat upon that Bench ; all men being desirous to have their cases brought and tried before him.” —Somers Tracts, Scott’s Ed., xi. 550. 94 LORD STAIR. The complaints with regard to this and other irregularities in the procedure of the Court were so loud and well-founded, that the King had, on 21st September 1669, nominated a Com¬ mission,^ of which Stair was a member, to consider the whole matter of the Eegulations of the three Supreme Courts, which then existed in Scotland—the Session, Justiciary, and Ex¬ chequer. The Commissioners reported, in March 1670, certain rules which they recommended for adoption, without prejudice to what, upon further consideration, they should offer as a full settlement; and the King, on the 4th June, ratified their report,^ and ordered the rules to be observed, and the advo¬ cates to swear to them. Amongst the rules was one imposing a limit on advocates’ fees, which created the greatest dissatis¬ faction amongst that body. They refused to swear to the Ee- gulations, and, as they had done in the case of the tender, tried to carry their point by a strike. “ They withdrew for two whole months, viz., from 10th of November till January, having just represented to the Lords, in a large speech, that these Eegulations were impracticable, and that it was impos¬ sible to observe them without the inevitable hazard of per¬ jury.”® Like many other strikes, this one failed through want of union. The Dean of Faculty, Sinclair, on his return from London, where he had been engaged in the negotiations as to the Treaty of Union, took the oath; a few other advocates followed his example; and the majority, who had themselves, as usually happens in small as well as great revolutions, divided into two parties—a more and less violent one—were compelled to give in. Stair had opposed this regulation, and had even prophesied to the Commission that the article concerning the lawyers’ fees would make all the others ineffectual. For his services to the ^ Inst. iv. 2. 6.—Forbes’s Preface, p. 33. 2 See Act. Pari. viii. 80 ; 1672, c. 16. Articles for Regulating of tbe Judicatories, set down by tbe Commissioners thereto, authorized by his Majesty under the Great Seal. Edinburgh, 1670.—Advocates’ Library Pamphlets, 2. 5. 19. ^ Mackenzie’s History, p. 216. ACT REGULATING THE JUDICATORIES. 95 Faculty in this matter, and for preventing the distinction be¬ tween Inner and Outer House advocates, which had prevailed in 1587 and 1604, from being re-introduced, he was publicly thanked by the Facultyd His prophecy was at least partially fulfilled in a way very discreditable to the advocates, who, Mackenzie relates, in order “ to render the articles wherein themselves were concerned ridiculous, did exclaim against the whole; and by this practice made the greatest part of them burdens, and unpleasant both to the people and to the Lords themselves, and after this that harmony, which used to be betwixt Lords and advocates, was here broke off.” ^ The Com¬ mission, however, persevered in its reforms, and, after holding many more sittings, finally reported, in 1672, a series of revised articles, which were embodied by Parliament in the Act con¬ cerning the Kegulation of the Judicatories, passed on the 30th of August of that year. This Act presents an instructive pic¬ ture of the evils in the procedure of the Courts it was directed to remedy. Some of its provisions, and in particular those relating to fees, were either evaded or never enforced; others have long since gone into desuetude; but several still remain an integral and important part of the law which regulates the procedure of the Courts of Session and Justiciary. The first division of the Regulations, which relates to the Court of Session, enacted that books should be kept for the enrolment of processes, which were to be marked of the dates when they were returned by the defenders’ advocates, who ' Forbes’s Preface, 7 and 33. ^ “ The greatest difficulty we have,” writes Rothes to Lauderdale, on 17th February 1671, “ is to order the fees of the advocates. Many of the Commissioners have been advocates themselves, or their sons are, yet they carry pretty fair, for the point is pressed to purpose ; and if yon hear not we order them, and the writers, you may conclude that all we have done is not worth two pears {?pence) to the poor harassed country." —Lauderdale Papers, Edin¬ burgh College Library. Rothes appears to have had a special ill-wiU to lawyers. “The Chancellor,” says Mackenzie, “dining at Blackbarony’s house, did express his dissatisfaction with the Advocate and Register for walking a-foot in the streets, having so considerable an allowance; calling them ‘damned Lawyers.’”— History, p. 213. 96 LORD STAIR. were allowed six days to see tliem, and that all causes should be called in the order of their enrolment. Careful provisions were made for the keeping both of the Inner and Outer House Eolls and for the publication of the former each Monday on the walls of the Outer House. It was provided that if the pursuer did not insist at the calling of a cause, it should be deleted from the Eoll, and protestation—a fine for not pro¬ ceeding with the case—granted to the defender. The Judges were strictly forbidden to alter the order of the Eoll, and if they did so the advocates were to be entitled to decline to plead. The jurisdiction of the Court was excluded, both in the first instance and by way of review—(advocation), and that of the inferior Courts made exclusive in all causes not exceeding the value of 200 merks Scots, not quite £11 sterling,^ in order that the Lords of Session might be “ in better capacity to discuss the processes which come before them, not being overburdened with small and inconsiderable causes.”^ Con¬ signation was introduced in suspensions of decrees in absence of the inferior Courts; suspensions of decrees in foro of the Court of Session were prohibited on reasons competent, and omitted or repelled ; and a decree in foro, as distinguished from a decree in absence of the defender, was defined to be where “ there is once compearance for any party and defences pro¬ poned,” although the advocate should afterwards pass from his appearance. A record of all such decrees was to be kept. Where defences were founded upon writings, these were to be produced along with the defences, and the particular clauses founded on were to be marked, otherwise no respect was to be paid to the allegiances or statements in the pleadings. Sus- ^ £10, 16s. 8d. sterling. The same limit had been previously fixed for advocation by 1663, c. 9, Act. Pari. vii. 451. The sum -was extended to £12 by 20 Geo. ii. c. 43, and to £25 by 50 Geo. in. c. 112. 2 These were the first enactments excluding the jurisdiction of the Supreme Court—a policy which, iu the opinion of many competent judges, has since been carried out to an excessive extent j but as regards smaU-debt causes its wisdom cannot be doubted. REGULATIONS AS TO COURT OF SESSION. 97 penders were to produce all their verifications ^ at the outgiving of the suspensions, and at the calling of the case, if not pro¬ duced, decree was to be given against them, but they were allowed to be received on payment of a fine of £12 Scots. To prevent delay in reductions ^ through ordinary and inci¬ dent diligences and terms for production, there were in future to be only two diligences against witnesses, one by homings and the other by caption, and no incident diligence against havers unless it was craved, when the Acts (i.e. orders of proof) were to be allowed ; there was to be only one term of produc¬ tion in single (i.e. simple) reductions and two in reductions- improbation.^ The regulations to which the advocates so strenuously ob¬ jected followed. No more than three ^ advocates were to be employed in any cause for a single party, and only two were to be allowed to speak in the Inner House, one after another,® upon the same side. The Chancellor or President was to keep the advocates close to the point, and their speeches were limited to half-an- This prudent provision is frequently evaded in modern practice. It urgently requires to be enforced, and, perhaps, to have added to it a pro¬ vision requiring affidavits in support of the facts on which suspensions are founded, in order to bring this important branch of the law into a satis¬ factory condition. It is matter of everyday observation that to get a sus¬ pension passed or interim interdict granted or refused strong averments sometimes suffice. ^ This is the action still in use in Scotland for setting aside deeds on the ground of forgery, fraud, incapacity, etc., and its forms were and still are more cumbrous than those of ordinary actions. ^ Reductions on the ground of forgery, or those cases in which, by fiction of law, forgery must be alleged. * Although this regulation is not enforced, it has been generally followed in practice, and there are scarcely ever more than three advocates employed in a Court of Session suit, and rarely more than two. In England and Ireland, on the contrary, it appears to be not very uncommon to have three or more counsel on each side. ® This is still the practice in the English but has ceased to be so in the Scotch Court, where the advocates on each side are heard alternately. G 98 LORD STAIR. hour. Their fees were to be according to the quality ^ of the client. The maximum for consultation, pleading, and drawing- bills upon any interlocutor was fixed for a nobleman at £18, a knight or baronet at £15, a gentleman or chief burgess at £12, and any other person at £9. Tor informations after dispute {i.e. after the case had been debated), half-fees, and that only to one advocate, were allowed.^ The parties were to give in a declaration, as they should answer to God, that they had not given larger fees, and every advocate, at his admission, was to swear he would not receive larger. A table of fees was also enacted for Clerks of Session and their servants, and for the Clerk of the Bills and his servants. Certain persons under the names of agents, who were neither advocates nor advocates’ servants, having taken upon them to meddle in processes, “ who are of no use but burdensome to the lieges,” they were prohibited from entering the Parliament House.® The Keepers of the General Eegisters of Hornings, Inhibitions, Interdictions, Sasines, and Keversions, and of the registers in the several shires, were enjoined to be careful in booking these writs, and ^ The same principle was adopted in the Regulations for Bail under the Act 1701, c. 6, and is characteristic of an aristocratic state of society. 2 These Regulations with regard to fees were rescinded in 1681.—Act. Pari. viii. 363. Fountainhall, Decisions, i. 153. ® The ordinary agents in litigation at this time were the advocates’ clerks or the advocates themselves, the Scotch custom having followed that of France, where no distinction existed between the counsel and the attorney or solicitor. The Writers to the Signet and Clerks of Session, called Clerks to the Signet, were originally employed in conveyancing business only and in drawing certain writs which required to pass the Signet. As business increased and litigation became more complex, the preparatory steps of a law-suit were undertaken by the writers. In 1754 a new body, the Solici¬ tors before the Supreme Court, were recognised by the Court, who in 1797 obtained a charter of incorporation, and have since engrossed the greater part of purely litigious business owing to their devoting more personal atten¬ tion to it than the writers, who have found the management of estates and conveyancing more lucrative. This division of labour in legal business, the result of natural causes, must be admitted to be an argument against the union of all branches of the legal profession now frequently advocated ; but it is not a conclusive argument. REGULATIONS AS TO JUSTICIARY COURT. 99 to keep exact minute-books of them. The regulations as to the Session conclude with a table of fees for Writers to the Signet. The second division of the Eegulations related to the Court of Justiciary. The office of Justice-Deputes was suppressed, and five of the Lords of Session were joined to the Justice- General and Justice-Clerk, with equal jurisdiction in all criminal causes.^ The names of the assizers or jury were to be inserted in a roll to be signed by the Justiciary Judges or a quorum of them. For the splendour of the Court all the Judges were to have red robes faced with white, and the Jus¬ tice-General for distinction was to have his lined with ermine. Circuits were to be held once a year in the month of April or May. After the enclosure of the assize, neither the Clerk of Court nor any other person was to be present with the assize.^ The Chancellor was to mark on the same paper as the verdict how each juryman voted, and the paper was to be sealed and not opened except by order of the Judge. In all criminal causes except treason, the defender or his advocate was to be entitled to the last speech.® Lists of witnesses were to be appended to 1 As regards the office of Justice-Depiite, Mackenzie observes: “ King Charles by Act of Parliament added five of the learnedest of all his Judges to his Justice-General and Justice-Clerk in place of two advocates who were generally but young or mean, because they had only fifty pounds salary and that seldom paid.”—Vindication of King Charles ii.’s Government, Mac¬ kenzie’s Works, ii. 347. 2 The regulation on this point is thus expressed : “ That the Clerk of the Court nor no other person be present with the assize after they are in¬ closed”—but this is elliptical, for “ neither the Clerk of the Court noi-.”—See Hume, Criminal Law, ii. 10. 3. There had been a similar provision in the Criminal Ordinance of James vi., as Hume well styles wdiat are usually cited as the Acts 1587, c. 81-91, Act. Pari. iii. 458 ; but this provision had not been observed. Mackenzie claims the credit of this regulation.— Works, ii. 352. ® This merciful and just provision has not yet been fully adopted by the law of England. Prior to 6 and 7 Will. iv. c. 114, by that law prisoners were not allowed the privilege of counsel addressing the jury on their behalf except in cases of treason, in which it had been allowed by 7 Will. iii. c. 3. And by the existing law, if the prisoner leads evidence, the counsel for the Crown has the reply, and the Attorney-General has the right of reply 100 LORD STAIR. every criminal libel and summons of exculpation, by which the accused was enabled to cite witnesses, and lists of the assize were also to be furnished to the prisoner. The last division of the Eegulations related to the Court of Exchequer, and contained provisions as to the fees of the Keeper of the Treasurer’s Eegister, and the Presenter of Sig¬ natures, and to the Cliques, or Exchequer Accounts of the Crown Vassals. The Act concludes with a recommendation to the Commissioners to take into consideration the procedure of the inferior Courts which they had been prevented from doing by the shortness of the time at their disposal, but this part of the Commission was never executed. On the whole, the Commissioners must be allowed to have materially improved the administration both of civil and cri¬ minal justice, and it would be well for similar bodies if they could point to equally beneficial results from their labours. Whether Stair, however, is entitled to any portion of the credit is not certain. According to Mackenzie^ he opposed the Act of ratifying the Eegulations; but this may have been because he thought the matter should have been left to the care of the Court. Although he objected to the Article as to advocates’ fees, he refers frequently with approval, in his Institutions, to other parts of the Eegulations. In the Parliament of 1672, which had been opened with great state by Lauderdale, who came down to Scotland as Com¬ missioner—his new wife,^ the proud and avaricious Countess of Dysart, attracting much animadversion by her presence and wlietlier the prisoner leads evidence or not,—“probably a relic,” observes Mr. Fitzjames Stephen, “of the old inquisitorial theory of criminal justice, under which the prisoner had no counsel, and could not have his witnesses sworn .”—View of the Criminal Law, p. 161. 1 Mackenzie, History, p. 234. ^ This lady, Elizabeth Murray, daughter of William Murray, son of the minister of Dysart, the whipping boy of Charles i., was lashed for her own sins by the satirists of the time, with a severity which appears to have been deserved, but there is probably no truth in the insinuation that she had been SCOTCH LEGISLATION IN 1672. 101 ostentation—Stair sat as Member for the shire of Wigton, and there being several vacancies in the Committee of the Articles, he was nominated by the Commissioner, along with Sir James Foulis, one of his colleagues on the Bench, and Sir William Lockhart, to supply those in the representation of the third estate.^ The subservient Parliament preserved a shadow of its former right of election of the Lords of the Articles by recom¬ mending Lauderdale to nominate the persons to fill the vacan¬ cies, leaving the nomination to his own choice.^ This was an important year in Scotch legislation, in which Stair, as one of the Committee of the Articles, necessarily took an important part. Lauderdale was now preparing to carry into effect his scheme of governing Scotland without a Parliament, “ by the good old form of government by his Majesty’s Privy Council.”^ In order to this end it was expedient that the Cromwell’s mistress. She was Countess of Dysart in her own right, her father having been raised to the peerage by Charles i. under that title.— See Satyre on Duchess of Lauderdale, Maidment’s Scottish Pasquils, p. 241. “ Methinks this poor land hath been troubled too long With Hatton and Dysart and old Lidington. While justice provokes me in rhyme to express The truth which I know of my bonny old Besse :— She is Besse of my heart, she was Besse of old Nol, She was once Fleetwood’s Bessie, and she’s now of Athole. She’s Bessie of Church, and Bessie of State, She plots with her tail and her lord with his pate; With a head on one side and a hand lifted hie She kills us w'ith frowning and makes us to die.” “ The Duchess of Lauderdale, not contented with the great appointments they had, set herself, by all possible methods, to raise money. They lived at a vast expense, and everything was set to sale. She carried all things with a haughtiness that could not have been easily borne from a queen. She talked of all people with an unguarded freedom, and grew to be universally hated.” Burnet’s History of His Own Times, i. 339. 1 Act. Pari. viii. p. 57. 2 “ The Estates of Parliament, according to the former president, recom¬ mended to his Majesty’s Commissioners to nominate the persons to till these vacancies.”—Act. Pari. viii. p. 57. 3 Lauderdale to Sir 11. Moray. Lauderdale Papers quoted by Burton, vii. 102 LORD STAIR. Council’s power and jurisdiction should receive the colour of statutory legality. Accordingly, the Acts anent unlawful Ordinations and Con¬ venticles, and the keeping of the King’s Eestoration-day, gave large powers of inflicting penalties to the Council. The Conven¬ ticle Act^ renewed the Acts of 1670, and, with an appearance of moderation, declared : “ Since there might be some ques¬ tion concerning the meaning and intent of the word ‘ pray,’ it was not intended to prohibit praying in families by the persons of the families and such as shall be present, not exceeding the number of four persons besides the family, but the outed min¬ isters were not to have liberty to pray in any families except in the families where they were allowed to preach, and the magistrates in shires and burghs were ordered to be careful to put the Acts in due execution against keepers of Conventicles and withdrawers from public worship, and to return an account of their proceedings to the Council yearly.” It is possible that Stair used his influence to introduce this allowance of family prayers—a practice he himself, as we shall afterwards see, regularly observed, and which may be almost characterized as a national habit of the Scotch people. He certainly promoted the indulgences ^ granted by Lauder- p. 465.—I am indebted to Mr. D. Douglas, Publisher, Edinburgh, for an opportunity of perusing a transcript of these Papers, which was made from the originals in the British Museum by Mr. Vere Irving. They are of much interest, as showing the spirit of the times. Another portion of these Papers in the Edinburgh College Library I had also an opportunity of consulting, but a third in the possession of the Lauderdale family I have not seen. Those I have read contain much less information than was to be expected with regard to Stair. ^ Mackenzie, in a sentence which indicates that the name of the bloody advocate was not so undeserved as his modern panegyrists would have us believe, observes, “ The Parliament did, according to its ordinary method, begin with laws in favour of the Church, making field Conventicles death." — His¬ tory, p. 220. 2 Kirkton gives an account of a conference which he and Mr. Gabriel Cuningbame had with Stair on 20th August 1672, relative to the second indulgence.—Kirkton’s History, 330. SCOTCH LEGIST A TION IN PRIVA TE LA W. 103 dale to the outed ministers in 1669 and 1672. Kirkton calls him the “ great confident ” of the Presbyterian ministers in the Privy Council, and Sir George Mackenzie ^ represents him as being always on the side of the fanatics. We shall presently find that he did what he could to protest against the severer measures of that body, but it would have been better for his fame had he never sat on the board, which, for the next nine years, misgoverned Scotland. He appears himself to have been conscious of this, for he asserted “ that no judge should be either member of Council or Exchequer, for these courts did learn men to be less exact justiciars than was requisite.” ^ It was the same feeling that induced him to decline to have anything to do with the administration of criminal justice. “ I did never,” he says in his Apology, “ meddle in any criminal Court, nor was I ever judge, pleader, jiiror, or witness therein.” The Acts of the Parliament of 1672 relating to private law were more creditable than those which dealt with ecclesiastical affairs. Besides the Act concerning the Eegulation of the Judicatories, of which mention has already been made, the interests of minors and persons of defective capacity were protected by the wise Statute, which requires inventories of their property to be made at the sight of the next of kin, or, if they are absent, of the judge.® The great delay, which was the consequence of requiring letters and Acts of Continuation of Processes, followed by second Summonses, was remedied by a provision, that all Summonses which were in use to be continued were to contain two separate warrants for citation at two distinct diets.^ ^ Mackenzie’s History, p. .321. See also, as to Stair’s dealings with the Presbyterians, Burnet’s History of His Own Times, i. 369. 2 Mackenzie’s History, p. 271. ® 1672, c. 2 ; Act. Pari. vdii. p. 59. * 1672, c. 6 ; Act. Pari. viii. p. 64. “All law having thought fit to use more citations than one in matters of importance, by our law, before this Act, he who raised a Summons cause execute the same by any person he pleased, who is called a Sheriff in that part, after which he did get an Act of Continuation from one of the clerks, and a second Summonds, both of which were c.alled an Act or Letters, and were signed by the clerk ; but 104 LORD STAIR. The system of Eegistration of deeds, which had been intro¬ duced in 1617,^ and which Stair on many occasions helped to improve, received a development in the enactment, that aU charters, infeftments, commissions, gifts, and other writings passing the Great and Privy Seal, should be registered in these Eegisters respectively before the Seal was appended to them ; and the writers to these Seals were not merely to mark them on the back as registered, but also to keep a perfect Minute- Book containing the names, surnames, and designations of the persons in whose favour the charters and writs were granted, with the names of the lands and special matters contained in them.^ This Act also made two important practical improvements in the form of titles ; the Precept of Sasine, which had hitherto been a separate writ passing the Quarter Seal, was in future to to be inserted in the Charter, and permission was given for writing charters and writs passing the Seals in the shape of a because that was confusing and troublesome, therefore, by this Act, these Acts and Letters are taken away, and two citations on the first Summons were declared to be sufficient.”—Mackenzie, Observ., p. 427. ^ 1617, c. 16. There had been some prior attempts to establish a system of registration. See 1425, c. 67 ; 1469, c. 39 ; 1555, c. 29 and c. 46 ; 1587, c. 64; but the Act of 1617 is the leading Statute. ^ 1672, c. 7 ; Act. Pari. viii. 69. Mackenzie’s account of the Scotch system of Registration, Treatises on the Law of Scotland, p. 28 : “ An answer to some reasons, printed in England, against the overture of bringing into that kingdom such registers as are used in Scotland,” shows how alive the lawyers of this period were to its advantages. He concludes : “Since these registers have been found so advantageous, and that experience hath herein seconded reason. His humbly conceived that Scotland is much to be magni¬ fied for these Registers, and that England may, without disparagement, intro¬ duce this new among their old Statutes, whereby they cannot so properly be said to innovate as to enrich and augment their law, ‘ nec pudet ad meliora transire.’ But I know the nation to be so wise and prudent that if they understood our Register as well as they do their own concerns, they would prefer them to those reasons this gentlemen has aflSrmed against them.” This understanding has not however, after the lapse of two hundred years, been attained; the Act of Lord Westbury, introducing similar regis¬ ters, has failed. LAW AS TO EXECUTION AGAINST LAND. 105 book instead of a roll, their authenticity being guarded by a provision that the Seals were to be appended on a band, which was to go through all the leaves in the margin. The privilege of Eoyal Burghs to arrest strangers, until they should find security to pay debts due to the burgesses, was con¬ fined within more reasonable limits by enacting that it should only apply to debts due for “ horse meat or man’s meat abuil- ziements, or other merchandice for which the burgess had no security except his account-books.” Burghs of Barony and Eegality were declared to have no such rights.^ The mer¬ ciful provision of the Ann, which allows the executors of deceased ministers a half-year of their moderate stipends in addition to their legal rights, and which had been introduced by an Act of Queen Mary, and a letter by James vi. to the Assembly at Montrose, in 1580, in imitation of a provision of the German Eeformed Church, was further regulated, and the necessity of a conformation in such cases dispensed with.^ But the most elaborate of the Statutes which affected private law was that regulating special adjudication, which was introduced in lieu of the apprisiugs of the older law.® The law of Scotland, notwithstanding the strictness of its feudal principles, had at a much earlier period than that of England^ 1 1672, c. 8 ; Act. Pari. viii. 69. ^ 1672, c. 13 ; Act. Pari. viii. 73. The subject of the Ann is learnedly discussed by Mackenzie in his Observations on the 4th Act of Queen Mary’s Third Parliament.— Works, i. 255. ® Kames, Law Tracts, x.. Execution. * The tardy reform of the English law in this particular is almost in¬ credible. Prior to the Statute of Westminster, the second lands them¬ selves could not be taken in payment of debt. The only remedy of the creditor was by the writs of fieri facias or levari facias, which attached merely goods, chattels, and the present profits of lands. By that Act the writ of elegit was introduced, under which the debtor’s goods and chattels were not sold but appraised, and delivered to the judgment creditor at the appraise¬ ment in satisfaction of his debt. If insufficient to satisfy it, one-half of his freehold lands were delivered to the creditor to be held till the debt was paid out of the rents. But it was not till 1 and 2 Viet. c. 110, that this remedy was extended to copyhold lands and to the whole instead of the one-half of 106 LORD STAIR. recognised the necessity of allowing land to be sold for payment of debt. A Statute of Alexander i. empowered the Sheriff, when the debtor’s moveables were insufficient, to sell bis land for payment of bis debts.^ This speedy remedy however fell into desuetude, and by the Act 1469, c. 3,^ apprisings were in¬ troduced by decree in which the creditor sold or entered into possession of the debtor’s lands, but the debtor could redeem them within seven years from the purchaser or creditor. The superior was bound to receive the purchaser or creditor as his Amssal on payment of a year’s rent. The practice which followed upon this Act of leading apprisings before Messengers at Arms, as Sheriffs in that part, and of apprising large estates for small debts, became very oppressive, and although some¬ what mitigated by the Act 1621, c. 6, which enacted “that the rents intromitted with by the creditor, if more than sufficient to pay his annual rent, shall be applied towards extinction of the principal sum,” a further remedy was found necessary. This was given by the “ Act for ordering the Payment of Debts betwixt Creditor and Debtor,” passed in the first Parliament of Charles ii.® Besides several temporary provisions to ease the the debtor’s freeholds. Prior to this Act copyhold lands could not be taken in execution for debt. And as regards a deceased debtor, his heirs who suc¬ ceeded to his freehold land were not liable to pay his debts unless named in a bond or contract under seal (called specialty debts), until an Act in 1807 made the heirs of deceased traders so liable, and another in 1833 all heirs ; but copyhold lands were not liable for the debts of their deceased owners, even where specially named in bonds or contracts under seal, until the Act of 1833. See on this subject Williams, Real Property, 9th ed., p. 77, et seq., and 348. The Scotch Courts had, at least as early as 1626, by an equitable extension of adjudication, known as adjudication contra hereditatem jacentem, allowed the creditor of a deceased debtor to force the heir either to represent his ancestor, in which case he became liable for his debts, or to relinquish his claim to the debtor’s estate, which was then adjudged to the creditor. 1 Act. Pari. i. 371. 2 1469, c. 37 ; Act. Pari. ii. 96 : “ An quhare the debtoure has no moveble gudis hot his land, the Scheriff before quham the said soume is recoverit be the brefe of distress sail ger sell the land to the avail of the det and pay the creditor.” ^ 1661, c. 62. At the time when this Act was passed a great part of ACT TO SPECIAL ADJUDICATIONS. 107 landed proprietors sunk in debt by their misfortunes during the troubles, this Act introduced what has since been called general adjudication, by which, where the lands comprised exceeded in yearly rent the annual rent or interest of the sums contained in the comprisings and the expense of infeftment, the debtor might desire the creditor to possess the lands comprised, and the Lords of Session were authorized, on supplication by the debtor, to appoint the appriser to possess such part of the lands as they thought reasonable during the legal reversion or period within which the debtor might redeem. The period of this reversion was extended from seven to ten years, but in the event of the debt not being- paid within that period, the creditor’s right to the whole lands comprised revived. The Act of 1672 was intended to introduce an alternative form of diligence by which the Court of Session was to adjudge to the creditor a precise or special portion of the debtor’s land sufficient to pay the debt, with one-fifth more in respect of his wanting the use of his money, and being compelled to take land instead; the period of reversion of these special adjudi¬ cations was limited to five years. This Statute, which had been devised by five eminent lawyers, Sir Peter Wedderburn, Sir George Lockliart, Sir John Cunninghame, Sir Eobert Sinclair, and Sir George Mackenzie, was strongly opposed by the representatives of the burghs, who represented the moneyed interest, in Parliament, and though it passed through the in¬ fluence of the barons, was so much altered that it was not even used by the lawyers wdio had advised it. It subsequently the nobility and gentry of Scotland were insolvent. Lauderdale is said to to have had difficulty in procuring a new coat to appear at Charles ii.’s court on his restoration. His correspondence, when he became Secretary of State for Scotland, is full of petitions for offices or pensions from the poor Scotch nobles and their relations, few of which seem to have been successful if we may judge by their constant repetition. Yet in 1681, out of a total revenue of £90,000 per annum, £25,000 was expended in pensions.— Chambers’s Domestic Annah, ii. 427. As to the wretched condition of the Scotch nobility, see Scott of Scotstarvit’s Staggering State of Scotch Statesmen. 108 LORD STAIR. became in practice inoperative, though still retained in the form of summonses of adjudication, until rendered unneces¬ sary in them by an Act passed in 1847.^ Stair’s support of this Act is said by Mackenzie to have injured his reputation although he had only complied with the desire of the lawyers who had contrived it, some of whom “ transferred their own guilt upon him,”^—a singular expression, as Mackenzie was himself one of them, but he probably intended by it to in¬ dicate Sir George Lockhart. Another subject keenly agitated in this Parliament was a proposal to do away with the Summer Session of the Court of Session, and add a month or two to the Winter Session.^ Lauderdale heard a debate on this point from five on each side—Stair, Mackenzie, the Duke of Hamilton, the Earl of Dundonald, and the Chancellor, being for the change; Lord Hatton (Lauderdale’s brother), the Earl of Tweeddale, Lord Gosford, the Provost of Edinburgh, and Sir Robert Sinclair, against it. Lauderdale himself at first was favourably disposed to the proposal, but, according to Mackenzie, altered his mind through the influence of Hatton, and the overture was allowed 1 10 and 11 Viet. c. 48, sect. 18. 2 Mackenzie’s History, pp. 221 and 222. In 1681 there was an attempt made to rescind this Act which fell to the ground by the adjournment of the Parliament : “ There was an Act brought into the Articles at the mediation of'the Writers to the Signet for taking away the new Act of Adjudications introduced in 1672, and bringing back the form and practice of comprisings again. This was opposed by the President of the Session, Imo, because he was the author of the said Act anent the adjudications. . . . By the pro¬ rogation of this Parliament this motion ceased. . . . 2do, his son, being a Clerk of the Session, had much benefit by these adjudications.” Stair him¬ self says of the Act of 1672: “This Statute has taken away the greatest reproach upon our law, which for every debt indefinitely apprised every estate, great or small, which had no excuse but that the debtor might re¬ deem within seven years.”— Inst. iii. 2. 54. 3 Mackenzie’s History, p. 222. An Act abolishing the Summer Session was afterwards passed in 1681, but it was restored in 1686. The month of March was substituted during this period for the Summer Session.—See Fountainhall’s Decisions, p. 177. GRANT OF MARKET AT KIRK OF OLENLUCE. 109 to sleep. When again brought forward in Parliament, he in¬ terposed his veto as Commissioner, “ swearing it should never be taken away except his Majesty named another Commis¬ sioner.” ^ As in almost every political decision in this period undue influence was suspected. The Duchess of Lauderdale, it was said, had been solicited or bribed by the town of Edin¬ burgh, whose trade would have suffered by doing away the Summer Session, but Mackenzie declares, “ after exact in¬ quiry, I found these to be mere calumnies.” Amongst many grants of markets and fairs made in this Session of Parliament, which indicate the increasing agricul¬ tural prosperity of the country, but also the system of monopoly by whicli it was retarded, was one for a weekly market and two yearly fairs at the Kirk of Glenluce, in favour of Sir James Dalrymple and the Bishop of Galloway. The grant proceeded on a petition, in the conciseness and pertinency of which the hand of Stair may perhaps be detected. It set forth that the ^ Mackenzie, p. 223, et seq. The argument on both sides is curious. On the one hand it was said, “ That the Summer Session was a great hindrance to the policy and to the country affairs of the lieges, as well as to their pleasure, for, before meu could settle at home after the Winter Session, they were called again to the Summer Session, so that their projects and changes were interrupted and ruined ; and the months of June and July, which were the only pleasant months, and the only months wherein gardens and land could be improven, were spent in the most unwholesome and unpleasant town of Scotland. Nor could it be denied, that by having two Sessions the people were put to a double expense in travelling to Edinburgh ; and when they came in June, the half of the Session was spent before business was entered upon ; so that by adding one month to the Winter Session, more business might be despatched in five continued months than in six months with such interruptions as ordinarily attended the beginnings and endings of Sessions.” In favour of a Summer Session it was represented, “ That no nation which had Courts of Justice did interrupt the course of justice for six months together, and that the want of Courts for so long a time in the kingdom would render it wild, and make malefactors insolent and debtors insolvent, which were greater prejudices than any that could be pressed on the other hand ; and since the Session was not in six months able to expede the pro¬ cesses that lay before them, it was not to be expected they could despatch them in five.” 110 LORD STAIR. burghs of Wigton and Stranraer stand near the extremes of the shire of Wigton, and are twenty-eight miles distant from each other, there being no town or market-place betwixt the two, to the great prejudice of the lieges ; and that the Kirk of Glen- luce stands betwixt the two burghs in the middle of the shire, and is a necessary pass by which not only all who go from one part of the shire to another, but by which all that go from Ireland to England, and from England and the southern parts of Scotland, must travel, and so is a convenient place for fairs and markets.^ The days of this fair were afterwards changed by the Parliament of 1681. This is only one of several instances in which we find Stair actively engaged in measures for the improvement and advantage of his estates. In this or the following year, along with Sir John Nisbet, the Lord Advocate, and his own cousin, John Chalmers, laird of Gadsgirth, he brought an action, in the Court of the Commissioners of Teinds, against the heritors of the parishes of Ochiltree and Tarbolton in Ayrshire. The object of the action was the suppression of the parish of Barn¬ well, which was inconvenient, owing to its distance from the mansion-house of Stair—the annexation of part of it to the parish of Tarbolton, and part to the parish of Craigie, and the erection out of the three parishes of a new one to be called the parish of Stair. The Commissioners appointed a Committee to inquire into the facts, which gave in a report approving of the proposal, suggesting that a stipend should be modified to the minister of the new parish, and the patronage vested in Stair, who was to provide the manse and glebe. This report was approved of by the Commissioners, and a decree, in terms of it, was pronounced on 9th July 1673.^ Stair was again returned for Wigtonshire in the short 1 Act. Pari. viii. 442. 2 Connell On Parishes, 51-3 ; and the Report of the Committee in the same work. Appendix No. 22. INCIDENT OF THE WOMEN’S PETITION. Ill Parliament of 1673, which sat only from 12th November to the 2d of December, and, after several adjournments, was dissolved on 19th May 1674. It did nothing but pass three Acts relating to the excise, discharging the taxes on salt, brandy, and tobacco ; and a fourth, which allowed all persons to wear silk white lace and satin ribbons, a right which, by a Sumptuary Act of the preceding Parliament, had been limited to certain privileged classes. This privilege would not be very extensively taken advantage of, if we credit Dryden’s lines : “ Laced linen there would be a dangerous thing, It might perhaps a new rebellion bring ; The Scot who wore it would be chosen king! ” ‘ The frequent adjournments and final dissolution of this Par¬ liament were intended to prevent the grievances, which the Duke of Hamilton and his party alleged against Lauderdale, from being discussed.^ In this summer an incident, very characteristic of the times, occurred in the Parliament Close at Edinburgh, in which Stair was an actor, and of which Kirkton has left a graphic account in his History: “ Because men durst not,” he writes, “ the women ^ of Edinburgh would needs appear in a petition to the Councell, wherein they desired a gospell ministry might be provided for the starving congregations of Scotland. Fifteen of them, most part ministers’ widows, engadged to present so many copies to the principal lords of Councell, and upon the 4th of June filled the whole Parlia- 1 Prologue spoken at Oxford. ^ See Mackenzie, History, p. 2G7. ^ The part taken by the women of Scotland, from the earliest dawn of the Reformation, in the religious struggles of the times, is very remarkable. “ Yea, I dare say,” writes Rothes to Lauderdale in 1G65, “ if it were not for the women, we should have little trouble with conventicles, or such kind of stuff; but they are such a foolish generation of people in this country, who arc so influenced by their fanatick wives as I think will bring ruin upon them.”—Lauderdale mss., British Museum, xx. 147. 112 LORD STAIR. Parliament Closse. When the Chancellor came up, Sharp came up with him, and as the Chancellor left his coach, Sharp clapt close to his back, fearing, it may be, bodily harm, which he then escapt: only some of them reproached him, calling him Judas and traitor, and one of them laid her hand upon his neck, and told him that neck must pay for it ere all was done, and in that guessed right ; but this was all he suffered at that time. Mr. John Livingstone’s widow ^ undertook to present her copie to the Chancellor, which she did. He received it, and civilly pult off his hat. Then she began to speak, and took hold of his sleeve. He bowed down his head and listened to her (because she spake well) ^ even till he came to the Councell chamber door. She who presented her copy to Stair found no such kind reception, for he threw it upon the ground, which made one tell him he did not so with the remonstrance against the king which he helped to pen. But when the Councell conveened, the petition was turned into a seditious lybell in the vote of the Court. The provost and guard were sent for, but none of them were very cruell, only they threatened, and the women dissolved. Thereafter, for ane example, some of them were cited, and some denunced rebels. Three women they incarcerate also for a time—James Clelland’s wife, Lilias Campbell, and Margaret Johnston, a daughter of Wariston’s ; and this was the end of that brush.” ^ This was the widow of the Minister of Ancrum, who had been one of the Commissioners to Holland in 1650. 2 Mackenzie gives another account of the Chancellor and Mrs. Living¬ stone’s conversation: “Many hundreds of women,” he says, “filling the Parliament Close, threatened the Archbishop of St. Andrews, who past along with the Chancellor, for whose coming he had waited in his own chamber; and some of them had conspired to set upon him, when a woman, whom I shun to name, should raise her hand on high as a signal; to pre¬ vent which the Chancellor, by entertaining the women with insinuating speeches all the time as he past to the Council, did divert that bloody design.”— History, p. 273. But it is difificult to believe, if such a design existed, that the Chancellor could have had cognisance of it. THE GREA T SECESSION OF THE A D VOCA TES. 113 Stair’s conduct on this occasion was in keeping with what appears to have been throughout his policy towards the Con- venticlers. Though ready to assist in measures of conciliation and accommodation in favour of the Presbyterians, he was anxious to show he discountenanced the acts of the wilder and more riotous spirits of that party. In this year tlie contention^ between the bench and the bar broke out anew. The subject of dispute was the right of appeal from the decisions of the Court to Parliament, which was one part on which the negotiations for union in 1670 miscarried. Although now almost forgotten, this dispute was regarded at the time “ as the most notable misfortune that has ever attended the Session,” ^ and was of political as well as professional importance. It was another form in which the stubborn independence of the Scotch character, stifled in Par¬ liament, and in vain attempted to be suppressed in the Church by a mixed j^olicy of severity and indulgence, showed itself. The lawyers, however, can boast no martyrs, though they con¬ ducted the contest for a time with spirit. The controversy originated in an appeal presented to the Scotch Parliament by the advocates for the defender, in an action by the Earl of Dunfermline against the Earl of Cal- lendar,^ relative to the construction of the marriaofe-contract of the Countess of Dunfermline. The point, however, on which tlie appeal was taken was one of procedure merely. The case had been reported by the Lord Ordinary to the full Court, and, when after several adjournments, that the Earl of Callendar ^ See Mackenzie’s History, p. 267 et seq., for the fullest account of the Secession of the Advocates. Also Kirkton’s History, p. 347 ; Law’s Memo¬ rials, p. 73; Maidment’s Scottish Pnsquils, p. 218 ; and Stair’s Apoloyy, p. 6. For modern accounts, Laiug, ii. 64, and note ii. ; Burton, vii. 476 ; Address of Lord President Inglis to Juridical Society of Edinburgh. ^ Forbes’s Preface, p. 16. ® See the report, Earl of Dunfermline v. Earl of Callendar, Stair’s Deci¬ sions, 5th February 1674, and 16th February 1676 ; also in Morisou’s Dictionary, 2941, 1 Brown’s Supplement. H 114 LORD STAIR. might be present, it was called at a diet when his advocates had undertaken to answer without further delay, they pleaded that there was no process, because it ought to have been enrolled for liearing and waited its turn on the Koll, according to the Eegulations of 1672. It was replied, that the defender having procured delay on an undertaking to answer, they could not now interpose a dilatory plea.^ The Court gave effect to this reply, and determined to hear the cause, on which an appeal to Parliament was presented on behalf of Lord Callendar, That nobleman was cited for the appeal as a contempt of Court, and gave in a paper drawn by his counsel, the first advocates then at the bar,—Sir George Lockhart, Sir Eobert Sinclair, Sir John Cunninghame, and Sir George Mackenzie, names frequently associated at this time in political measures, as well as in the conduct of litigation,—that he designed nothing but to protest for remeid of law, by which cases were occa¬ sionally removed from the stricter procedure of the Court of Session to the more flexible jurisdiction of Parliament. These advocates ,were then summoned before the Court, where they adhered to their paper. The matter was now deemed of so much consequence that the Lords of Session addressed a letter^ to the King on the subject; and Lauderdale being about to return to London, he was accompanied in the Spring vacation by Stair and "Wallace of Craigie, another of the Judges.^ The King sent down an answer condemning appeals, but ordering no further proceedings to be taken against the advocates if they disowned them; but if they refused they were to be debarred from “ the exercise of any ^ Stair’s Decisions, ii. 262. 2 Letter, 28th February 1674.—Books of Sederunt, Eegister House, Edinburgh. ^ Mackenzie’s History, p. 269. “ Immediately after he went to Court, taking the Lord President and the Lord Craigie with him, to second their own letter.” APPEA L TO PARLIA MEN T—SECESSION CASE. 115 part of their practice as advocates in time coming.”^ Sir George Lockhart and Sir John Cuuninghame having been called before the Court, refused to disown the appeal, declaring that “ though formal appeals might be said to be contrary to the C2d Act of the 14th Parliament of James ll., yet a protestation for remeid of law might be allowed.” Upon which they were, in terms of the King’s letter, debarred from employment. About fifty of their brethren, resolved to share their fate, seceded from the Parliament House, and left Edinburgh, Lockhart, with one party, taking up their quarters at Haddington, Cuuninghame with another at Linlithgow. The Privy Council, by a procla¬ mation on the 19th of December,^ turned this voluntary exile into banishment, prohibiting their return within twelve miles of the capital. An able but not very respectful letter, originally written by Sir George Mackenzie, but which he tells us was so much altered by Lockhart that he only signed it “ to prevent a rupture at a time when their formal adherence to one another was their only security,” was presented to the Privy Council,^ by which it was voted seditious. In the meantime Lockhart, Cunninghame, and Sinclair went to London in the hope of arranging matters with the King, and IMackenzie having “ in¬ tercepted a letter, wherein they told their confidents that they had resolved to wait the event of that process,^ in which, if Sir George Mackenzie was absolved, they would be secure by the preparative, but, if he was found guilty, the malice of the pur¬ suers would be blunted before it reached them,” was so dis¬ gusted that he resolved to submit, and induced the great bulk of the appealers, as the advocates who had withdrawn were called, to present a petition to the King, asking for readmission ^ King’s letter, 19tli May 1674.—Mackenzie, History, p. 269. ^ 19tli December 1674.—Privy Council Records, Register House, Edin¬ burgh. ^ 28th January 1675.—Mackenzie, History, p. 279. ^ The process was the Indictment by the Council.—Mackenzie’s Defences to the Indictment will be found in his History, p. 294. 116 LORD STAIR. and disclaiming the right of appeald They were accordingly restored, and the rest shortly followed their example^ It is easier to prononnce an opinion that an appeal of the kind presented by Lord Callendar’s advocates was contrary to law and would have been highly inexpedient, for the Parlia¬ ment of Scotland was a body quite unsuited to determine legal questions, as Mackenzie® himself admits, than to estimate fairly the parts of the leading actors in this transaction. The treatment of the advocates was undoubtedly high-handed, dictated by a policy of repression similar to that which, in the case of the outed ministers, kept up the state of chronic dis¬ affection which ended in the Eevolution of 1688. Their pro¬ test for the independence of the bar and their neglect of personal considerations in its assertion deserve the sympathy of all who regard the honour of a profession in which, when honour 1 24th June 1675. 2 A. S., 25th January 1676.—Most of the advocates had been already re-admitted. See MS. Books of Sederunt, 7th and 8th January 1676, Register House, Edinburgh. ® “ This appeal displeased most sober men, who considered that by this method the nobility, who always governed Parliaments, would thereby too much influence private causes ; and that ignorant members of Parliament would have an equal vote on the subtlest cases of law with those whose breeding and experience had rendered them fit dispensers of justice.”—Mac¬ kenzie, History, 268. And Lord Fountainhall, one of the seceders, seems to have come round to the same opinion, for he remarks in 1681, when a proposal to allow appeals had been mooted, “ Yet some think our civil rights and in¬ terests as well and safely lodged in the Session as in a Parliament who judge more with a biass and in a hurry, and with less regard to law, than the Lords of Session do.” Burnet, with his usual acuteness, has noted a political object which, no doubt, moved many of the supporters of the right of appeal : “ A cause being judged in the Supreme Court of Session, the party appealed to the Parliament. This was looked on as a high contempt done on design to mahe the Parliament a Court of Judicature that so there might he a necessity of frequent Parliaments.'” He does not appear, however, truly to estimate the merits of the question, for he adds, “ So the Judges required all the lawyers to condemn this as contrary to law. And they had the words of the law on their side, for there lay no such appeal as stopt process, nor was there a writ of error in their law. But upon petitions Parliament had, though but seldom, reviewed and reversed the judgments of the Courts, so the debate lay about the meaning of the word Appeal.” MOTIVES OF LEADING ADVOCATES AND STAIR. 117 is lost, all is lost. But private and less creditable motives mingled in their conduct. Lockhart was believed by some to have advised the appeal, hoping the Parliament would drive Stair from the Presidency, and he would succeed to it. Mac¬ kenzie, it is apparent from his own account of the transaction, was actuated throughout by a mean jealousy of Lockhart, from whose talents he could not withhold his admiration while he never spares an insinuation against his character. The popular voice loudly blamed the conduct of Stair. A parody of the ballad Fareivcll, Fair Armida gave expression to this in the following lines :— “ Blame not Craigie Wallace, nor call him your grief, It was Staire and not he that deny’d you relief; Abuse not his letter, nor call him severe, Who never, God knows, had his Majesty’s ear. But since a rumple President does sit. That serfs at bar should domineer was fit.”^ His former profession as usual was ixsed as a butt by the satirist:— “ Eemonstrant^ good Mas James, how came’t to pass Your once too thick is now so thin a class 1 Are your lads laureat, or have they plaid The truant since you them so tightly paid % Ill-natured stinkard boys who disobey Your Regent thus—yet for excuse they say Your Tuptos and your Ergos are so kittle. Your Topicks and your Ethicks are so fickle. Your Ferulas and your Taws they are so sair. The boys vow they’ll go to school no mair.”^ Mackenzie, echoing the popular complaints, accuses Stair of having been influenced, in his condemnation of the ai^peal, by Lauderdale who had a private interest in the cause from his ^ Maidment, Scottish Pasquih, p. 219. 2 The allusion is to Stair having signed the Remonstrance of 1651. 3 Maidment, Scottish Pasquils, p. 221. 118 LORD STAIR. relationship to Lord Dunfermline. Stair has defended himself in his Apology by saying, “ I have been quarrelled for being the author of the banishing the advocates from Edinburgh in the year 1674 in the harvest vacance, which is taken notice of in the grievances as an encroachment upon their due by the then Privy Council whereof I was altogether free; for it was done in the vacant time Avhen I was in the country, and the inspection of the Sederunts of the Council will demonstrate that in the whole vacance I was not present, yea, seldom was I present in any vacance,^ and ofttimes absent in Session time, especially when the affairs of the Council required afternoon meetings. God knows I had no pleasure in the affairs which were then most agitated in Council.” He has recently found an eminent advocate in the present occupant of his Chair : “ Such an invasion of the privileges and independence of the bar,” observes Lord-President Inglis, “ was alien alike to Lord Stair’s natural disposition and to his political tendencies, and is inconsistent with his conduct on all occasions wlien the in¬ terest of the bar was concerned. A few years before he op¬ posed the separation of the advocates into two classes, one to practise in the Outer and the other in the Inner House, and a proposal made about the same time to require an oath from the advocates that they would not take larger fees than such as should be fixed by the Court; and for his services in op¬ posing these innovations he received the thanks of the Faculty.” 2 Yet it is impossible, after a review of the whole circum¬ stances, to accept either defence as sufficient. It is true Stair was absent from the Council® at the meeting when the advo- 1 Stair seems generally to have resided during the vacation in the country. In July 1661 President Gilmour, writing to Lauderdale about some business of the College of Justice, notices, “ Lord Stair’s hand is wanting, being at this time out of town.”—Lauderdale mss., British Museum, 13th July 1661. 2 Lord President Inglis .—Address to Juridical Society. ^ This has been ascertained by inspection of the Records of the Council in the Register House, Edinburgh. EXPLANATION OF STAIRS CONDUCT. 119 cates were banished, but he personally waited on the King when the letter was obtained ordering them to be debarred; and he concurred in, if he did not direct, all the acts of the Court by which this was carried out. It is also true that on more than one occasion he contended for the privileges of the bar, but in none of these had it come in conflict with the Coiirt. On the other hand, the charge of subserviency to Lauderdale does not appear to be made out. Though his intimacy with that strange and coarse character must be deemed a blot on his own, in this instance a more important issue than the result of a private cause and the favour of a powerful minister was evidently involved in the eyes of Stair and the Judges—the independence of the Court. It was for this he fought as keenly^ as the advocates for the independence of the bar ; and had he not sanctioned the unjust measure of depriving the advocates, for their advice to their client, his conduct might have admitted of a complete defence. On the merits of the question, whether considered as one of mere law or of political expediency, he was undoubtedly in the right. It is true the advocates attempted to show that the appeal they had presented was only the known form of a protest “ for remeid ^ Besides that referred to in the text, several letters from the Court of Session to the King and to Lauderdale, with reference to the secession of the advocates, will be found in the Books of Sederunt ; see 17th June 1675 and 4th June 1676.—Books of Sederunt, Eegister House, Edinburgh. There is also a letter from Stair to Lauderdale in the British Museum. Lauder¬ dale Papers, 23. 115, c. 4, No. 8, in which the following passage occurs: “Ther is abundance of processes before the Session, and all carried through as ordinar, which every day doth mor and mor show how far these gentle¬ men have mistaken their measures in .apprehending they are so neces- sare as that they would not but get their will if they stuck together.” The date is 26th -January It occurs in a series of papers headed, “ Kehating to the Debarred Advocates,” which do not contain much new matter beyond what is cont.ained in the Books of Sederunt and Privy Council Records, but show, what I have not observed noticed elsewhere, that there had been at least two other appeals besides that of the Earl of Callendar, one by the Marquess of Hamilton and another by Lord Aboyne in name of the Man^uess of Huntly. 120 LORD STAIR. of law,” by which, in extraordinary cases, suits were removed from the Session to the Parliament; but the appeal presented in this cause was in reality something quite different. It was not, as the protest for remeid of law, a transference of the pro¬ cess on the ground that Parliament was the proper tribunal to decide it, as was done in the case of the burghs of regality —it was a claim that every interlocutor should be subject to review by Parliament, which, if successful, would have made the orderly progress of every action impossible, unless Parlia¬ ment had sat continuously, and appointed a Judicial Committee for the purpose of hearing causes. The reasons which render the appeal to the House of Lords, on the whole, a benefit, though by no means an unmixed benefit, for the adminis¬ tration of justice in Scotland, are quite inapplicable to such axr appeal as was contended for to the Scotch Parliament. Three of the lawyers who took part in this, the greatest of the three secessions of the period, may be taken as repre¬ sentatives of the brilliant epoch of the Scotch bar when Stair presided over the Court. It is no digression from his life briefly to notice the characters of the men with whom he was brought into daily professional contact. Sir George Lockhart of Carnwath was, in the opinion of his contemporaries, the greatest lawyer the Scotch bar had ever known. His rival Mackenzie describes him as a new edition of the Corpus Juris and as a second Cicero.^ His junior, Sir John Lauder, describes the auditors of one of his great speeches as sorry when he came to an eud,^—the rarest praise that can be bestowed on an orator. * Locartiiis Corpus alterum Juris Civilis, alterque Cicero dici poterat.— Characteres Advocatorum Scoticorum, p. 7. 2 Of Lockhart’s pleading in the case of the Town of Edinburgh, Fountain- hall says, Historical Notices, i. 80, “ As for Sir George Lockhart’s part in this tragi-comedy, he acted it to the admiration of all hearers with so much lustre and advantage that, tho’ in other things he surpassed all his rivals, yet in this he excelled, outdid, and surpassed himselfe; his pungent argu- CHARACTER OF SIR GEORGE LOCKHART. 121 Barnet pronounces him the best pleader of any nation he had ever heard, and he had doubtless listened to the fore¬ most advocates of Holland and of England as well as of Scotland, and, like most Scotchmen who have migrated to England, had no prejudice in favour of his own countrymen. Stair, after he had already sat for ten years in the Presi¬ dent’s chair, and though he was eight years Lockhart’s senior at the bar, declared that he would not have accepted the Presidency a second time had not Lockhart’s career been closed by death.^ As is usual in famous speakers, these pane¬ gyrics seem scarcely justified by the specimens of his oratory that remain, which exhibit clear reasoning rather than extra¬ ordinary eloquence. Yet it would be wrong to discredit them. No fame is less durable than that of the pleader who rises to the highest pitch of his art when, careless of future fame, he concentrates his mind on the circumstances of the passing moment—the details of his cause, however unimportant; the intellect and temper of his judges ; and, for the time at least, despises all knowledge which is not essential to the former and acceptable to the latter. But one who satisfied the in¬ tellect of Stair must have been no mean master of his pro¬ fession. He was the son of one of Charles l.’s judges,^ wliich pro¬ bably led him to choose the profession of the law; but it ments were carried iu such a torrent and irresistible flood of eloquence the most impetuous and charming of anything ever I did hear, he did so charm and with his tongue draw us all after him by the ears in a pleasant gaping, amazement, and constraint, that the wonderful effects of Orpheus’s harp in moving the stones seems not impossible to an orator on the stupidest spirit ; and what Seneca pater, libro 3o Controversiarum in praise says of Cassius Severus, that eloquent pleader, I found verified in myself and others, ‘ Terre- bamus ne definiret,’ they were so far from wearying that they were afraid of nothing more than that he should end too soon.” 1 “ And it is known to many of eminent quality, that while Sir George Lockhart lived I would neither desire nor accept of the charge.”— Apoloists should be severely fyned and punished ; 2